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Full text of "North Carolina Register v.12 no. 6 (9/15/1997)"



I 



NORTH CAROLINA 

REGISTER 



VOLUME 12 • ISSUE 6 • Pages 443 
September 15, 1997 



504 



I 



IN THIS ISSUE 

DHHS - Division of Facility Services 

Agriculture 

Cosmetic Art Examiners, Board of 

Cultural Resources 

Environment, Health, and Natural Resources 

Human Resources 

Nursing, Board of 

Optometry, Board of Examiners 

Rules Review Commissioa 

Contested Case Decisions 



PUBLISHED BY 

The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleigh, NC 2 7611- 7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 



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[REcfi^^ 



SEP -o If,, 



KATT 



"'T^-J-, .-, 






This publication is printed on permanent, acid-free paper in compliance with G.S. 125-1 1.13 



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t 



I 



NORTH CAROLINA 
REGISTER 




IN THIS ISSUE 



I. IN ADDITION 

DHHS - Division of Facility Services 



443 



n. RULE-MAKING PROCEEDINGS 
Cultural Resources 

Archives & History, Division of 444 

Environment, Health, and Natural Resources 

Wildlife Commission 445 - 453 

Human Resources 

Medical Assistance 444 - 445 

Licensing Boards 

Cosmetic Art Examiners, Board of 453 

Optometry, Board of Examiners in 453 - 454 



I 



Volume 12, Issue 6 
Pages 443 - 504 



September 15, 1997 



This issue contains documents officially filed 
through August 22, 1997. 



m. PROPOSED RULES 
Agriculture 

Structural Pest Control Division 455 - 459 

Environment, Health, and Natural Resources 

Environmental Management Commission 462 - 479 

Human Resources 

Medical Care Commission 459 

Secretary of Human Resources 459 - 462 

Licensing Boards 

Nursing, Board of 479-480 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601) 

PO Drawer 27447 

Raleigh, NC 27611-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

James R. Scarcella Sr., Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 
Linda Richardson, Editorial Assistant 



IV. TEMPORARY RULES 
Human Resources 

Facility Services, Division of 481 - 487 

Licensing Boards 
Optometry, Board of Examiners 487 - 488 

V. RULES REVIEW COMMISSION 489-491 

VI. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 492 - 496 

Text of Selected Decisions 

96 OSP 1927 497-500 

97 DOJ 0669 501-503 

VU. CUMULATIVE INDEX 1-45 



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IN ADDITION 
















This Section contains public 
of Rules for publication. 


notices that 


are 


required to be published in 


the 


Register or 


have been 


approved by 


the 


Codifier 



ABBREVIATED NOTICE OF TEMPORARY RULE-MAKING 
DIVISION OF FACILITY SERVICES 

This is an Abbreviated Notice to inform interested persons that the Division of Facility Services plans to adopt temporary rules to 
incorporate need determinations and policies from the 1998 State Medical Facilities Plan ("SMFP") once it is approved by the 
Governor. Prior to his review and approval of the Plan, the Governor will receive recommendations from the State Health 
Coordinating Council ("SHCC"). The SHCC will review petitions and public comments on the Draft 1998 SMFP and finalize its 
recommendations at its next scheduled meeting on Wednesday, September 24, 1997, 10:00 AM - 12:00 Noon, Jane S. McKimmon 
Center at the comer of Gorman Street and Western Boulevard, Raleigh, North Carolina. 

Any questions should be directed to Jackie Sheppard, APA Coordinator, DHHS , Division of Facility Services, P.O. Box 29530, 
Raleigh, NC 27626. 



I 



I 



12:6 NORTH CAROLINA REGISTER September 15, 1997 443 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency 's proposed rule nuiking. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of 
a rule. Publication of a temporary rule ser\'es as a Notice of Rule-making Proceedings and can be found in the Register 
under the section heading of Temporary Rules. A Rule-making Agenda published by an agency ser\'es as Rule-making 
Proceedings and can be found in the Register under the section heading of Rule-making Agendas. Statutory reference: 
G.S. I50B-21.2. 



TITLE 7 - DEPARTMENT OF CULTURAL 
RESOURCES 

CHAPTER 4 - DIVISION OF ARCHTVTS AND 
HISTORY 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Historical Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rules it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

7 NCAC 4R - Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 105-130. 42(b)(2): G.S. 
105-151. 23(b)(2) 

Statement of the Subject Matter: The rules shall govern the 
certification by the State Historic Presenation Officer of 
historic structures and the certification of the rehabilitation of 
historic structures. The certifications are required, under the 
above-cited stamtory authority, in order for taxpayers to obtain 
an income tax credit for expenditures to rehabilitate 
nonincome-producing historic structures. The intent of the 
North Carolina Historical Commission is to adopt these rules 
as temporary rules effective January 1, 1998. 

Reason for Proposed Action: The rule-making is necessary in 
order to implement the above-cited statutory authority pursuant 
to amendments contained in S.L. 1997-139. S.L. 1997-139 
created a thirty percent tax credit for taxpayers who 
rehabilitate nonincome-producing historic structures. 

Comment Procedures: Written comments regarding this rule- 
making should be sent to: David Brook. Administrator. State 
Historic Presenation Office. N.C. Department of Cultural 
Resources, 109 East Jones Street. Raleigh, NC 27601-2807. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 

CHAPTER 26 - MEDICAL ASSISTANCE 

Notice of Rule-making Proceedings is hereby given by the 
DHR - Dixision of Medical Assistance in accordance with 



M 



G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 10 

NCAC 26D .0010; 26K .0006; 26M .0201 - .0203; proposed 
adoption of 10 NCAC 26M .0204 - MEMBER COMPOSITION, 
10 NCAC 50A .0604; 50B .0202. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 108A-25(b); 108A-54; 
S.L. 1991. c. 689, s. 93(h); 42 C.F.R. 431.625; 42 C.F.R. 
433.32; 42 C.F.R. 433, Subpart D; 42 C.F.R. 435.905; 42 
C.F.R. 447.15; Soc. Sec. Act 1903(b)(1). 

Statement of the Subject Matter: 

10 NCAC 26D .0010 - Assures coordination of benefits for 

individuals who are entitled to both Title XVIII and Title XIX. 

10 NCAC 26K .0006 - Lists conditions for which providers 

can bill Medicaid recipients. 

10 NCAC 26M .0200 - Prescribe procedures for Health 

Maintenance Organizations (HMOs) to contract with the 

Division of Medical Assistance to provide and coordinate 

medical senicesfor certain Medical eligibles. 

10 NCAC 50 A .0604 - Lists State and county financial 

responsibility for errors in Medicaid cases. 

10 NCAC SOB .0202 - Explains the application process; the 

client 's rights and responsibilities; the programs of public 

assistance; and the eligibility conditions. 

Reason for Proposed Action: 

10 NCAC 26D .0010; 26K .0006; 50A .0604; SOB .0202 - 

These rules are being challenged and appear to be inadequate 
for ensuring that the Medicaid program does not pay for 
medical expenses that could be paid by Medicare. Federal 
financial participation cannot be claimed for expenditures paid 
by Medicaid when Medicare is available as the primary payer. 
Theses changes will strengthen the authority of the Medicaid 
program to require a person to make a Medicare application as 
a condition for payment of a claim. State will be payer of last 
resort. Medicare will be primary payer. 
10 NCAC 26M .0201 - .0204 - These proposed changes will 
more clearly describe the Department 's HMO/risk contracting 
programs. Procedures for contracting with DMA and coverage 
issues, including recipient categories that are eligible for 
enrollment, geographic areas where programs may operate and 
sen-ices that are covered, are addressed in more detail. 



444 



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Comment Procedures: Written comments concerning this 
rule-making action must be submitted by December 1. 1997 to 
Portia Rochelle, Rule-making Coordinator, Division of Medical 
Assistance. 1985 Umstead Drive, Raleigh, NC 27603. 



TITLE ISA - DEPARTMENT OF ENTVIRONMENT, 
HEALTH, AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

^btice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



Reason for Proposed Action: To set out jurisdiction and 
regulation of inland and coastal waters and specific species 
therein. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

'\Totice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOB .0100 - .0400. Other rules may be proposed 
in the course of the rule-making process. 



Authority for the rule-making: 

276. 113-291 



G.S. 113-134, 113-270, 113- 



Statement of the Subject Matter: lOB .0100 - General 
Regulations, lOB .0200 - Hunting. lOB .0300 - Trapping, lOB 
.0400 - Tagging Furs. 

Reason for Proposed Action: Set seasons and bag limits; 
regulate trapping, tagging of furs, and sale of wildlife. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh. NC 27604-1188. 

"KTotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0101 - .0111. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 113-132, 113-138, 113- 
292 

Statement of the Subject Matter: Jurisdiction Of Agencies: 
Classification Of Waters. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0107. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

292 

Statement of the Subject Matter: 

Waters. 



G.S. 113-132. 113-138. 113- 



Special Regulations: Joint 



Reason for Proposed Action: To designate areas of 
jurisdiction and regulation of species in joint waters. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

'KTotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0203. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-275, 113- 
304 

Statement of the Subject Matter: Reciprocal License 
Agreements. 



12:6 



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September 15, 1997 



445 



RULE-MAKING PROCEEDINGS 



Reason for Proposed Action: To amend/set regulations for 
reciprocal fishing license agreements. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15. 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0205. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-272. 113- 
292 

Statement of the Subject Matter: Public Mountain Trout 
Waters. 

Reason for Proposed Action: To designate/classify public 
mountain trout waters. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh. NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0206. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134. 113-272, 113- 
292 

Statement of the Subject Matter: Trotlines And Set-Hooks. 

Reason for Proposed Action: To regulate/restrict use of 
trotlines and set hooks. 



Comment Procedures: The record will be open for receipt of 

written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

******************* 

A Jotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

I5A NCAC IOC .0211. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-292 

Statement of the Subject Matter: Possession Of Certain 
Fishes. 



Reason for Proposed Action: 

certain fish. 



To regulate/restrict use of 



Comment Procedures: The record will be open for receipt of 

written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1 188. 

******************* 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0212. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-264, 113- 
292 

Statement of the Subject Matter: Fish Hatcheries. 

Reason for Proposed Action: To regulate/restrict activities at 

fish hatcheries. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1 997. Such written comments must be delivered or mailed to 



446 



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September 15, 1997 



12:6 



RULE-MAKING PROCEEDINGS 



the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 

"KTotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0215. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-267 



Statement of the Subject Matter: 

Wildlife Resources - Fish. 



Replacement Costs Of 



Reason for Proposed Action: To define, describe and set 
replacement costs for species offish. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



A Jotice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0304. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-135, 113- 
292 



Statement of the Subject Matter: 

Inland Game Fishes. 



Taking And Possession Of 



Reason for Proposed Action: 

inland game fishes. 



To regulate/restrict taking of 



Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh. NC 27604-1188. 



^;t=4:4:4:^^=4'^=1'4'=l'3t:^^4: 



^'btice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0302. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

292, 113-302 



G.S. 113-134. 113-273, 113- 



Statement of the Subject Matter: 

Game Fishes. 



Manner Of Taking Inland 



Reason for Proposed Action: To Set Out Permitted Methods 
Of Taking Inland Game Fishes. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

75/4 NCAC IOC .0305. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

304, 113-305 



G.S. 113-134, 113-292. 113- 



Statement of the Subject Matter: 

Size Limits. 



Open Seasons: Creel And 



Reason for Proposed Action: 

designated fishes. 



To set creel and size limits for 



Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1 188. 

******************* 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



447 



RULE-MAKING PROCEEDINGS 



^btice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0401. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-272, 113- 
292 



Statement of the Subject Matter: 

Nongame Fishes: Purchase And Sale. 



Manner Of Taking 



Reason for Proposed Action: To regulate/restrict the taking 
and sale of nongame fishes. 

Comment Procedures: The record will be open for receipt of 

written comments from September 15. 1997 - November 15. 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

'KJotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0402. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-135. 113- 
272. 113-292 

Statement of the Subject Matter: Taking Bait Fishes And 
Fish Bait. 



Reason for Proposed Action: 

bait fishes and fish bait. 



To regulate/restrict taking of 



Comment lYocedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15. 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission. 512 N. Salisbury- 
Street, Raleigh. NC 27604-1188. 



A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0404. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

276, 113-292 



G.S. 113-134, 113-272. 113- 



Statement of the Subject Matter: Special Device Fishing. 

Reason for Proposed Action: To regulate/restrict the use of 
special fishing devices. 

Comment Procedures: The record will be open for receipt of 

written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC IOC .0407. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134. 113-272. 113- 
276, 113-292 

Statement of the Subject Matter: Permitted Special Devices 
And Open Seasons. 

Reason for Proposed Action: To set seasons for use of special 

fishing devices. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15. 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 



448 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



RULE-MAKING PROCEEDINGS 



G.S. I50B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

]5A NCAC WD .0001 - .0400. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-306 

Statement of the Subject Matter: Game Lands Regulations 

Reason for Proposed Action: Amend rules to set seasons and 
regulate manner of hunting and fishing on game lands. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOD .0004. Other rules may be proposed in the 
course of the rule-making process. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOE .0001. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-264, 113- 
305 

Statement of the Subject Matter: Definition Of Fishing And 
Boating Access Areas. 

Reason for Proposed Action: To define fishing, boating and 
access areas. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
J. y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings arui any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOE .0002. Other rules may be proposed in the 
course of the rule-making process. 



Authority for the rule-making: 

1508-2(8} (a) 



G.S. 113-134, 113-264, 



Authority for the rule-making: G.S. 113-134, 113-264, 113- 
272, 113-292, 113-305 

Statement of the Subject Matter: Fishing On Game Lands. 



Statement of the Subject Matter: Regulations Posted. 

Reason for Proposed Action: To amend rules regarding 
posting of regulations at fishing and boating access areas. 



Reason for Proposed Action: To regulate/restrict fishing on 
game lands. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

\ Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 1508-21. 2. The agency shall subsequently publish in the 
Re gister the text of the nde(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



ilp:iifHi:i^ilpip3ii:ti 



Hi ilf ^ it: ilfi 



Notice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Commission in accordance with 
G.S. 1508-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of nde-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC WE .0003. Other rules may be proposed in the 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



449 



RULE-MAKING PROCEEDINGS 



course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-264 

Statement of the Subject Matter: Signs and Markers. 

Reason for Proposed Action: To amend rules regarding 
posting and markers regulating use of fishing and boating 
access areas. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings arui any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Malting: 

15A NCAC lOE .0004. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-264, 75A- 

14 , . . , 

Statement of the Subject Matter: Use Of Areas Regulated. 

Reason for Proposed Action: Regulate/restrict use of fishing 
and boating access areas. 

Comment Procedures: TTie record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF.OlOOET SEQ. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3, 75A-5. 75A-7, 



75A-19, CFR 174.17 ■ , 

Statement of the Subject Matter: Motorboat Registration. 

Reason for Proposed Action: To amend rules to comply with 
new vessel registration procedures. 

Comment Procedures: The record will be open for receipt of 

written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 

"K Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings arui any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0318. Other rules may be proposed in the 
course of the rule-making process. ; 

Authority for the rule-making: G.S. 75A-3, 75A-15 

Statement of the Subject Matter: Local Water Safety 
Regulations: Warren County. 

Reason for Proposed Action: To restrict boat speeds in 
congested area. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of nde-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOF .0345. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3. 75A-15 

Statement of the Subject Matter: Local Water Safety 
Regulations: Wake and Chatham Counties. 



450 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



RULE-MAKING PROCEEDINGS 



Reason for Proposed Action: 

congested area. 



To restrict boat speeds in 



Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by tliis Rule-Making: 

15A NCAC lOF .0347. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 75A-3, 75A-15 



Comment Procedures: The record will be open for receipt of 

written comments from September 15, 1997 - November 15. 
1997. Such written comments must be delivered or /nailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



:^;^:4::je;);:(;:^4: 



******* 



'A Totice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .0100. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-273 

Statement of the Subject Matter: Controlled Hunting 
Preserves For Domestically Raised Game Birds. 



Statement of the Subject Matter: 

Regulations: Craven County. 



Local Water Safety 



Reason for Proposed Action: 

establish swimming area. 



To restrict boat access and 



Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh. NC 27604-1188. 



Reason for Proposed Action: To regulate operation and 
licensing of controlled hunting preser\'es for domestically raised 
game birds. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15. 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission. 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 






******** 



******************* 

Notice of Rule-making Proceedings is hereby given by the 
North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. Tlie agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOG . 0400 ET SEQ. Other rules may be proposed 
in the course of the rule-making process. 



A Totice of Rule-making Proceedings is hereby given by the 
1 V North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .0300. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-292 



Authority for the rule-making: G.S. 113-134. 113-273. 113- 
276. 113-291. 113-305 

Statement of the Subject Matter: Wildlife Senice Agents. 

Reason for Proposed Action: To amend rules to comply with 
new vessel service agent procedures and requirements. 



Statement of the Subject Matter: Holding Wildlife In 
Captivity. 

Reason for Proposed Action: To regulate standards and 
conditions for holding wildlife in captivity. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 



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451 



RULE-MAKING PROCEEDINGS 



1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh. NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .0800. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-227; 50 
CFR 21.28, 21.29 

Statement of the Subject Matter: Falconry. 

Reason for Proposed Action: To regulate requirements, 
facilities and conditions required. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .0900. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 106-549.94, 
113-273; 50 CFR Part 21 

Statement of the Subject Matter: Game Bird Propagators. 

Reason for Proposed Action: To regulate requirements, 
facilities and conditions for propagation of game birds. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission. 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



******if***ififif**ieifir* 



"K Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .1000. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134. 273 

Statement of the Subject Matter: Taxidermy. 

Reason for Proposed Action: To regulate requirements, 
facilities and conditions for taxidermy. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



M 



*******4c**:«:|t:|i****** 



btice of Rule-making Proceedings is hereby given by the 



North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOH .1100. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 273 

Statement of the Subject Matter: Furbearer Propagation. 

Reason for Proposed Action: To regulate requirements, 
facilities and conditions for furbearer propagation. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15. 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission. 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 



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September 15, 1997 



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RULE-MAKING PROCEEDINGS 



Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC I OH .1200. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 113-134. 273 

Statement of the Subject Matter: Controlled Fox Hunting 
Preserves 

Reason for Proposed Action: To regulate requirements, 
facilities and conditions for controlled fox hunting preserves. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 



Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC lOJ .0001 - .0004. Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 113-306 

Statement of the Subject Matter: Wildlife Conservation Area 
Regulations. 

Reason for Proposed Action: To regulate use of Wildlife 
Conservation Areas. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street. Raleigh, NC 27604-1188. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 



A Jotice of Rule-making Proceedings is hereby given by the 
1 1 North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 101 .0001 - .0005. Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S. 113-134, 291, 292, 333 

Statement of the Subject Matter: Endangered and 
Threatened Species. 

Reason for Proposed Action: To regulate and list species that 
are endangered, threatened, arxd of special concern. 

Comment Procedures: The record will be open for receipt of 
written comments from September 15, 1997 - November 15, 
1997. Such written comments must be delivered or mailed to 
the NC Wildlife Resources Commission, 512 N. Salisbury 
Street, Raleigh, NC 27604-1188. 

'KJotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Wildlife Commission in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Re gister the text of the rule(s) it proposes to adopt as a result 
of this notice of rule-making proceedings and any comments 
received on this notice. 



CHAPTER 14 - BOARD OF COSMETIC ART 
EXAMINERS 

A Totice of Rule-making Proceedings is hereby given by the 
1 V North Carolina State Board of Cosmetic Art Examiners in 
accordance with G.S. 150B-21.2. The agency shall 
subsequently publish in the Re gister the text of the rules it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules AfTected by this Rule-Making: 21 

NCAC 14G. 0101, .0103, .0107, .0113; 14H .0113, .0119; 141 
.0104. .0105, .0107, .0109; 141 . 0401; 14J .0102, .0103 - 
.0105, .0202, .0204 - .0206, .0303, .0306, .0307, .0401 - 
.0404, .0501; 14K .0101, .0103; 14L .0101, .0105, .0108, 
.0214; 14N .0105, .0107, .0108. .0113. Other rules may be 
proposed in the course of the rule-making process. 

Authority for the rule-making: G.S. 88-23 

Statement of the Subject Matter: Rules for teaching 
cosmetology in an approved beauty school. 

Reason for Proposed Action: The Board interuis to amend its 
rules to bring practices up to date. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted to Dee Williams, Rule- 
Making Coordinator, N.C. State Board of Cosmetic Art 
Examiners, 1110 Navaho Dr., Suite 500. Raleigh, NC 27609. 

CHAPTER 42 - BOARD OF EXAMINERS IN 
OPTOMETRY 



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453 



RULE-MAKING PROCEEDINGS 



A Jotice of Rule-making Proceedings is hereby given by the 
1 y North Carolina Board of Examiners in Optometry in 
accordance with G.S. ] 508-21. 2. The agency shall 
subsequently publish in the Re gister the text of the rules it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 21 

NCAC 42. Other rules may be proposed in the course of the 
rule-making process. 

Authority for the rule-making: G.S. 90-121.2: 90-127.4 

Statement of the Subject Matter: The Board of Examiners in 
Optometry proposes to adopt rules governing peer review 



agreemems with the North Carolina State Optometric Society. 
The rules will set general parameters for such agreements, 
consistent with the provisions of G.S. 90-127.4, as enacted by 
the North Carolina General Assembly in S.L. 1997-75. 

Reason for Proposed Action: To provide for the establishment 
of a peer review program to assist the Board of Examiners in 
Optometry in upholding and improving the quality of 
optometric care provided to the people of North Carolina. 

Comment Procedures: Persons interested may direct written 
comments to the North Carolina Board of Examiners in 
Optometry, 109 N. Graham Street, Wallace, NC 28466. 



i 



I 



i 



454 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
Notice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars ($5,000,000). Statutory 
reference: G.S. 150B-21.2. 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Structural Pest Control 
Committee intends to amend rules cited as 2 NCAC 34 .0503, 
.0602, .0604 - .0605. Notice of Rule-making Proceedings was 
published in the Register on February 3, 1997. 

Proposed Effective Date: July 1, 1998 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): Any person may 
request a public hearing on the proposed rules by submitting a 
request in writing no later than October 1. 1997, to Carl E. 
Falco, Secretary, North Carolina Structural Pest Control 
Committee, PO Box 27647, Raleigh, NC 27611. 

Reason for Proposed Action: To provide for regulation of 
termite bait products used by pest control licensees. 

Comment Procedures: Comments may be submitted in writing 
no later than October 15, 1997, to Carl E. Falco, Secretary, 
North Carolina Structural Pest Control Committee, PO Box 
27647, Raleigh, NC 27611. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 34 - STRUCTURAL PEST CONTROL 
DIVISION 

SECTION .0500 - WOOD-DESTROYING INSECTS 

.0503 SUBTERRANEAN TERMITE CONTROL: 
BUILDINGS AFTER CONSTRUCTED 

(a) Basement or Crawl-Space Construction: 

(1) Access openings shall be provided to permit 
inspection of all basement and crawl-space areas of a 
building and all open porches. 

(2) Clean up and remove all wood debris and cellulose 
material, such as wood, paper, cloth, etc., contacting 
soil in all crawl-space areas. This excludes shavings 
or other cellulose material too small to be raked with 
the tines of an ordinary garden rake. Remove all 
visible stumps from all crawl-space areas. Remove 
all visible form boards in contact with soil. 

(3) Remove all earth which is within 12 inches of the 
bottom edges of floor joists or within eight inches of 



the bottom edges of subsills or supporting girders, 
but not below footings of foundation walls. If 
foundation footings are less than 12 inches below the 
bottom edges of joists or subsills or supporting 
girders, a bank of soil 12 inches to 18 inches wide 
shall be left adjacent to footings for the purpose of 
support. Clearance shall be adequate to provide 
passage of a man to all crawl-space areas of a 
building. 

(4) All visible termite tubes or tunnels on pillars, 
pilasters, foundation walls, chimneys, step 
buttresses, sills, pipes, and other structures below the 
sill line shall be removed. 

(5) Eliminate all wooden parts between the building and 
soil, both outside and inside, except those which 
appear to be pressure treated: 

(A) No wood of any access opening shall be in 
contact with the soil. 

(B) Where wood pans such as door frames, 
partition walls, posts, stair carriages or other 
wood parts can be reasonably ascertained to be 
making direct soil contact through concrete or 
where there is evidence of termite activity or 
damage they shall be cut off above the ground 
or floor level, and the wood removed from the 
concrete; and the hole shall be filled with 
concrete or covered with a metal plate, after 
the point of contact has been treated with a 
termiticide. 

(C) Where wood parts such as vertical wood 
supports or other wood parts under a building 
or steps outside a building are not resting on 
solid masonry or concrete bases extending at 
least two inches above the soil surface or are 
in direct soil contact and such supports or 
steps are not removed, the supports and steps 
shall be cut off and set on a solid masonry or 
concrete footing extending at least two inches 
above the ground after the point of contact has 
been treated with a termiticide. 

(D) When wood skirting and lattice work are 
suspended, there shall be at least a two-inch 
clearance between the top of the soil and the 
bottom edges of the wood skirting or lattice 
work. If the two-inch clearance is not 
acceptable to the property owner, it may be 
closed with solid masonry or concrete but a 
minimum clearance of one-fourth of one inch 
shall be provided between the masonry and 
wood. 



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455 



PROPOSED RULES 



(E) Where wood fence posts are making contact 
with the soil and any part of a building and 
such posts are not removed, a minimum 
clearance of one-fourth of one inch shall be 
provided between the posts and the building 
part; a continuous, non-corrosive, sheet metal 
barrier, extending two inches beyond each 
side of the post(s), may be substituted for the 
clearance. If the fence has wood railings, 
alteration(s) of the fence post against the 
building will not suffice. 

(F) Where houses or decks are built on pressure 
treated wood pilings, pillars or all-weather 
wood foundations, such pilings, pillars and 
wood foundation members, including wood 
step supports, shall not be subject to Rule 
.0503(a)(5)(A), (B) or (C). 

(6) Drill and treat all voids in multiple masonry 
foundation and bearing walls and all voids created by 
their placement. Porch foundation walls shall be 
drilled to a distance of three feet from the main 
foundation wall and the point of contact with any 
wooden members. 

(A) The distance between drill holes shall not 
exceed 16 lineal inches and holes shall be no 
more than 16 inches above the footing or 
immediately above the lowest soil level 
whichever is closest to the footing. 

(B) The drilling of voids in four inch thick hollow 
structural block shall not be required under 
this Rule. 

(C) Test drill the main foundation wall behind any 
porch or slab area to determine if the porch or 
slab is supported by a wall whose placement 
creates a void between itself and the main 
foundation wall. If test reveals that a void 
exist, drill and treat all voids therein as 
specified in this Rule. 

(7) Drill and treat all voids in all multiple masonry 
pillars, pilasters, chimneys, and step buttresses, and 
any void created by their placement: 

(A) The distance between drill holes shall not 
exceed 16 lineal inches and shall be no more 
than 16 inches above the footing or 
immediately above the lowest soil level, 
whichever is closest to the footing. 

(B) Drilling shall not be required if solid concrete 
masonry footings of pillars, pilasters, 
chimneys or step buttresses extend eight 
inches or more above top of soil surface. 

(C) The drilling of voids in four inch thick hollow 
structural block shall not be required under 
this Rule. 

(8) Where concrete slabs over dirt-filled areas are at the 
level of, above the level of, or in contact with, wood 
foundation members treat dirt-filled areas as follows: 
(A) Drill vertically three-eighths of one inch or 



larger holes in the slab, no more than eight 

inches from the building foundation, at no 

more than 16 inch intervals and treat soil 

below slab; or 

(B) Drill horizontally three-eighths of one inch or 

larger holes in the foundation wall of the 

concrete slab, no more than eight inches from 

the building foundation, every 16 vertical 

inches starting immediately below the bottom 

of the slab and rod treat all soil adjacent to 

building foundation from the bottom of the 

slab to the lowest outside grade. 

(9) Treat soil adjacent to, but not more than eight inches 

from, all pillars, pilasters, chimneys, pressure treated 

wood supports and step buttresses; inside of 

foundation walls; outside of foundation walls; the 

outside of foundation walls of concrete slabs over 

dirt-filled areas and the entire perimeter of a slab 

foundation wall. Where outside concrete slabs 

adjacent to the foundation prevent trenching of soil, 

drill three-eighths of one inch or larger holes, not 

more than 16 inches apart and within 8 inches of the 

foundation wall, through slabs or through adjoining 

foundation wall, and treat soil below slabs. The soil 

immediately around pipes and other utility conduits 

making contact with the structure, shall be treated. 

(10) Where stucco on wood or similar type materials 
extend to or below grade, trench soil to a depth 
below and under the edge of the stucco or similar 
type materials and treat soil. After the soil has been 
treated, a masonry barrier wall may be erected to 
hold back the soil from making direct contact with 
the stucco or similar type materials. Where outside 
slabs on grade adjacent to foundation prevent 
trenching of soil, drill three-eighths of one inch or 
larger holes through slabs within eight inches of the 
foundation wall, or through adjoining foundation 
wall, not more than 16 inches apan and treat soil 
below slabs. 

(11) Rule .0503(b) of this Section shall be followed if 
applicable to basement or crawl-space construction. 

(b) Slab-on-Ground Construction: 

(1) Treat soil with a termiticide in, under, and around, 
all traps and openings in the slab. 

(2) Drill vertically three-eighths inch or larger holes, at 
all visible or known expansion and construction 
joints, cracks, and crevices in slab and around all 
utility conduits in the slab at no more than 16 inch 
intervals and treat soil below slab. Where wooden 
structural members are in contact with concrete or 
masonry floors which have joints or cracks beneath 
the wooden structiiral members, including wall plates 
in utility or storage rooms adjoining the main 
building, the concrete or masonry shall be drilled and 
treated in order to achieve treatment of the soil 
beneath them. As an exception, expansion and 
construction joints at the perimeter of the exterior 



456 



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12:6 



PROPOSED RULES 



wall may be treated by drilling through the 
foundation wall at no more than 16-inch intervals 
directly below the bottom of the slab. 
(3) Rule .0503(a) of this Section shall also be followed. 

(c) Reapplication of Pesticide(s) to a Structure Previously 
Treated for Subterranean Termite Control: 

(1) A reapplication of termiticide shall be required if soil 
test by the Division reveals that the soil is deficient 
in the termiticide which was applied to the soil. 

(2) Any re-application of pesticides under Rule .0503 
shall be in accordance with the label of the pesticide 
used. 

(d) A licensee may enter into a written agreement for the 
control or prevention of subterranean termites in a building 
after it has been constructed without having to abide by Rules 
.0503(a) and (b) of this Section provided that: 

(1) The licensee has written proof, satisfactory to the 
committee, that he or his authorized agent, treated 
the entire building for subterranean termites at the 
time of its construction as required in Rule .0505 of 
this Section (or comparable regulations by the 
committee at the time of treatment). 

(2) A written agreement is issued in compliance with 
Rule .0605 of Section .0600. 

(e) Paragraphs (a) and (b) of this Rule shall not app ly to 
subterranean termite treatment performed using termite bait(s) 
provided the bait is labeled for protection of the entire structure 
and the licensee provides a warranty for the control of 
subterranean termites on the entire structure. 

Authority G.S. 106-65.29. 

SECTION .0600 - WOOD-DESTROYING 
ORGANISMS AGREEMENTS 

.0602 WOOD-DESTROYING INSECT AND OTHER 
ORGANISM REPORTS 

(a) Any written statement as to the presence or absence of 
wood-destroying insects or their damage in buildings or 
structures for sale shall be on the WDIR 100. An incomplete or 
inaccurate Wood-Destroying Insect Information Report shall 
not be acceptable and the issuance of such a report is grounds 
for disciplinary action by the Committee. No Wood-Destroying 
Insect Information Report or Wood-Destroying Organism 
Report shall be issued before an inspection of the building or 
structure is made. Each Wood-Destroying Insect Information 
Report issued by a licensee shall be kept in the files of said 
licensee and made available for inspection upon request of the 
Division. 

(b) If during the inspection of a structure, a licensee or his 
authorized agent finds live subterranean termites or visible 
evidence of past or present infestation of subterranean termites 
(such as tubes, damage, cast wings, infested wood scraps or 
other cellulose materials, etc.) in the structure and there is no 
visible evidence that said structure has been treated for 
subterranean termites, the licensee shall treat said structure for 
subterranean termites prior to the issuance of a 



Wood-Destroying Insect Information Report on the structure 
which states that the structure is free from subterranean 
termites. 

(c) If a treatment is performed in conjunction with a WDIR. 
a copy of the contract and warranty, if any, shall be attached to 
and become part of the WDIR. 

(c) (d) A licensee, certified applicator or registered 
technician shall not remove or destroy, or cause the removal or 
destruction of, any wood-destroying organism evidence 
discovered in, on, under or in or on debris under a structure 
inspected pursuant to this Rule except as required by Paragraph 
(b) of this Rule. 

Authority G.S. 106-65.29. 

.0604 WOOD-DESTROYING ORGAMSMS RECORDS 

(a) A duplicate of each written agreement and waiver (if 
applicable), for the control or prevention of any 
wood-destroying organism shall be kept by the licensee for a 
minimum of two years beyond the expiration date of the written 
agreement. The duplicate of each written agreement shall 
contain, in addition to the information specified under Rule 
.0605(a) or Rule .0605(d) of this Section, the following: 

(1) EPA approved brand name of pesticide used; and 

(2) Information required by EPA. 

(b) A duplicate of each wood-destroying insect or 
wood-destroying organism report shall be kept by the licensee 
for a minimum of two years beyond the date of issuance. 

(c) Non-commercial certified applicators shall maintain the 
following records for two years beyond the last date of 
treatment: 

(1) EPA approved brand name of all pesticides used; 

(2) Target pest; 

(3) Site of application; 

(4) Date of application; and 

(5) Information required by EPA. 

(d) If the pesticide used to control any wood-dstroying 
organism requires or recommends monitoring or inspecting for 
the pest to be controlled, the licensee, certified applicator or 
their employees shall make and maintain records of all such 
monitoring or inspection activities. Such records shall be made 
available for inspection as provided for in 2 NCAC 34 .0328. 

Authority G.S. 106-65.29. 

.0605 CONTRACTUAL AGREEMENTS FOR 
WOOD-DESTROYING ORGANISMS 

(a) All agreements for the control or prevention of 
wood-destroying organisms in existing structures shall be in 
writing and shall clearly set forth and include the following: 

(1) Date property was inspected and full name of the 
inspector; 

(2) Exact location of property inspected or treated; 

(3) Complete name and address of the property owner or 
his authorized agent; 

(4) Complete name and address of the licensee; 

(5) License number and phase(s) of the licensee and full 



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457 



PROPOSED RULES 



name of company licensee represents; 

(6) Signature of licensee or his authorized agent; 

(7) For existing structures, the written agreement shall 
include a foundation diagram ql if required or 
recommended by the label of the pesticide used, a 
site plan of the structure(s) or portions of such 
structure(s) inspected. The diagram or site plan shall 
clearly indicate and make full disclosure o f the 
lo c a t ion of individual wa te r sources, any — visual 
e videnc e of w oo d-des tro ying organism infesta t ion, 
whethe r i t be active or inac t ive, and visibly damaged 
timbers: of: 

(A) The location of individual water sources; 

(B) Any visible evidence of wood-destroying 
organism infestation; 

(C) Whether the infestation is active or inactive: 

(D) The location of any visibly damaged timbers: 

(E) Portions of the structure treated or not treated; 
and 

(F) The minimum number and proposed 
location(s) of bait or monitoring device 
placements, if applicable; 

The date upon which the written agreement is entered 
into and the period of time covered by the written 
agreement; 

The written agreement must clearly indicate, by 
complete not abbreviated common name(s), the 
wood-destroying organism(s) to be controlled or 
prevented, and covered under the written agreement; 
Whether or not reinspections are to be made and, if 
so, approximate time interval between, and renewal 
fees for same; 

Conditions under which retreatments will be made; 
Total price to be charged for treatment service, and 
for repairs or excavations, where such are to be 
performed; 

The written agreement, waiver (if applicable) and 
Wood-Destroying Insect Report or Wood-Destroying 
Organism Report, shall not show or include the 
address and telephone number of any licensee's 
representative or employee other than the address and 
telephone number of those specified in 
Subparagraphs (a)(3), (4), and (5) of this Rule; 

(14) Any licensee or business entity advertising to be 
bonded shall advise each customer, in writing, in the 
proposal, whether or not the contract or written 
agreement will be covered by a bond of any type; 

(15) If the performance of the work is guaranteed by a 
bond, the agreement shall set forth those performance 
guarantees in wording identical to that in the bond 
itself; 

(16) Rule .0501(a) of this Chapter shall also be followed. 

(b) A structure or structures covered by a contract for 
wood-destroying organism(s) treatment shall not knowingly be 
placed under an additional contract for the same treatment while 
the first contract is still in effect. 

(c) When periodic reinspections or retreatments are specified 



(8) 



(9) 



(10) 



(11) 
(12) 



(13) 



in written agreements for the control or prevention of 
wood-destroying organisms, the licensee shall issue to the 
property owner or his authorized agent, after each reinspection 
or retreatment, a signed report of each reinspection or 
retreatmeni showing the condition of the property with respect 
to the presence or absence of wood-destroying organisms. A 
record of such reinspections and retreatments shall be kept in 
the file of the licensee. Such reports shall be subject to 
inspection by the enforcement agency or committee. 

(d) All agreements for the control or prevention of 
wood-destroying organisms in buildings under construction 
shall be in writing and shall clearly set forth and include the 
following: 

( 1 ) Date of final treatment and period of time covered by 
the written agreement; 

(2) Exact location of the treated property; 

(3) Complete name and address of the property owner or 
his authorized agent; 

(4) Complete name and address of the licensee; 

(5) License number and phase(s) of the licensee and full 
name of company licensee represents; 

(6) Signature of licensee or his authorized agent; 

(7) The written agreement must clearly indicate, by 
complete not abbreviated common name(s), the 
wood-destroying organism(s) to be controlled or 
prevented, and covered under the written agreement; 

(8) Whether or not reinspections are to be made and if 
so, approximate time interval between, and renewal 
fees, if any, for same; 

(9) Conditions under which retreatments will be made; 

(10) Total price to be charged for treatment service; 

(11) Any licensee or business entity advertising to be 
bonded shall advise each customer, in writing, in the 
proposal, whether or not the contract or written 
agreement will be covered by a bond of any type; 

(12) If the performance of the work is guaranteed by a 
bond, the agreement shall set forth those performance 
guarantees in wording identical to that in the bond 
itself; 

(13) Rule .0604(a) of this Section shall also be followed. 

(e) If the licensee provides preventive treatment(s) for 
subterranean termites to a structure(s) for someone such as a 
builder or construction company who is constructing the 
building(s) for someone else or with the purpose of offering the 
building(s) for sale, the licensee may enter into a single master 
agreement with the builder to provide the preventive 
treatment(s) for subterranean termites. This single master 
agreement shall include the following: 

(1) Complete name and address of the builder, or his 
authorized agent; 

(2) That information required in Subparagraphs (d)(4), 
(5), (6), (7), (8), (9), (10), (11), (12), and (13) of 
this Rule. 

(f) When a structure is treated under an agreement with a 
builder, the licensee shall: 

(1) Following completion of the treatment, and upon 
notification by the builder or buyer, issue a written 



458 



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September 15, 1997 



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PROPOSED RULES 



(2) 



agreement to the initial buyer. The written 
agreement issued to the buyer shall include the 
following: 

(A) Complete name and address of the builder, or 
his authorized agent as it appears on the 
builder's agreement; 

(B) That information required in Subparagraphs 
(d)(1), (2), (3), (4), (5), (6), (7), (8), (9), and 
(1 1) of this Rule. The builder shall be issued 
a copy of any written agreement issued the 
buyer. 

Maintain a record of each treatment performed on 
each structure to include the following information: 

(A) Exact location of the structure treated; 

(B) Date each treatment was performed; 

(C) The portion(s) of the structure treated. 



Authority G.S. 106-65.29. 



TITLE 10 - DEPARTMENT OF HUMAN 
RESOURCES 



CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3M - MINIMUM STANDARDS FOR 
MOBILE INTENSIVE CARE UNITS 

SECTION .0100 - DEFINITIONS 

.0105 MOBILE INTENSIVE CARE UNIT II 

"Mobile Intensiv e Care Unit 11" means a cat e go r y — i 
ambulance staffed at a minimum by a t least one eme r gency 
medical technician-advanced iiitci media t e as defined in 21 
NCAC 3211 .0102(2) and one ce r tifi e d ambulanc e at t endan t and 
e qui ppe d in acco r danc e with the stajidards es t ablished by th e 
Medical Care Commission fo r pr oviding remo t e intensive care 
o r cardiac care to sick and injured pe r sons at the scen e of a 
medical emergency and du r ing t r anspo r t t o a health care 
facility. 

Authority G.S. 131E-157(a): 131E-158; 131E-I58(b); 131E- 
159(b). 

SECTION .0200 - EQUIPMENT 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Medical Care Commission 
intends to repeal rules cited as 10 NCAC 3M .0105 and .0205. 
Notice of Rule-making Proceedings was published in the 
Register on March 3, 1997. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 9:00 a.m. on December 
12, 1997 at the Well-Spring Retirement Community, Inc., 
Auditorium, 4100 Well Spring Drive, Greensboro, NC 27410. 

Reason for Proposed Action: G.S. 1 31 E-1 57 authorizes the 
Medical Care Commission to establish rules for equipment 
requirements for ambulance vehicles. These amendments are 
necessary to update the equipment requirements for ALS 
vehicles to reflect concurrent changes made in ALS certification 
levels by the North Carolina Medical Board in 21 NCAC 32H. 

Conunent Procedures: Persons who wish to make written or 
verbal comment regarding these proposed amendments should 
contact Mr. Ed Seagroves, Disaster & Special Projects 
Coordinator, NC Office of Emergency Medical Services, P.O. 
Box 29530. Raleigh, NC 27626-0530, Tele: (919) 733-2285, 
Fax: (919) 733-7021. Verbal and written comments will be 
received through the date of the public hearing. Persons are 
encouraged to submit written comments by September 2, 1997 
to allow adequate time for review and consideration by the 
Commission. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 



.0205 MOBILE INTENSIVE CARE UNIT II 

(a) In addition t o equi p ment r equi r ed in Rul e .0201 of this 
Sec t ion, an ambulance identified as a Mobile Intensive Care 
Uni t II may. u p on approval of the medical di r ecto r , car r y 
equi p ment and su pp li e s t o p erform medical ac t s au t horized by 
21 NCAC 32II .0400. The atnount of equi p ment o r su pp lies 
carried on each MICU II shall be concu rr ent wi t h th e m e dical 
pr otocols a ppr oved by the Office of Emergency Medical 
Se r vices in effec t fo r the advanced Life Su pp o r t p rog r am with 
this th e MICU 11 is affilia t ed. 

(b) A vehicle identified as a Mobile In te nsive Care Unit II 
may. u p on th e a pp roval of the medical director carry t he 
int r avenous solution(s) and mcdications(s) autho r ized by 21 
NCAC 321 1 .0406. Th e amoun t s and conc e nt r ations shall b e 
c o n c u rr en t with the m e dical pr otocols approved by the Office 
of Emergency Medical Se r vices in effect fo r the Advanced Life 
Su pp o r t pr og r am with which th e MICU II is affiliated. A co p y 
of the cu rr ent medical pr o t ocols may be ob t ained from the 
s p onso r hos p i t al of the advanc e d life suppon p r og r am. — Bnc 



be obtained at no cos t from t he 



co p y o t n NCAC Jill may 

Office of Eme r gency Medical Se r vic e s, 701 Barbou r D r iv e , 

P.O. Box 2 9 530. Raleigh, NC 27626-0530. 

Authority G.S. 131 E-1 57(a). 



:f:^:^:f:4:4;4:4: 



4::t;:|e:):4::^:t;:t::);4: 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Secretary of Human Resources intends to adopt 
rules cited as 10 NCAC 14V .7101, .7102, .7103. .7104, 
. 7105. Notice of Rule-making Proceedings was published in 
the Register on June 16, 1997. 

Proposed Effective Date: August 1, 1998 



12:6 



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September 15, 1997 



459 



PROPOSED RULES 



Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): A demand for 
public hearing must be requested in writing within 15 days of 
this notice and addressed to Charlotte F. Hall, Division of 
MH/DD/SAS, 325 N. Salisbury Street, Albemarle Building, 
Raleigh. NC 27603-5906. 

Reason for Proposed Action: G.S. 122C-1 12(a)(15) requires 
the Secretary of Human of Resources to adopt rules to 
implement the investigation of circumstances leading to the 
death of any prospective or confirmed Thomas S. class member 
not residing in a State facility listed in G.S. 122C-181. 

Comment Procedures: Please submit written comments to 
Charlotte F. Hall, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Senices (DMH/DD/SAS), 325 
N. Salisbury Street, Albemarle Building, Suite 523, Raleigh, 
NC 27603-5906, Fax 919-715-4651. Comments will be 
accepted through October 15, 1997. 

Fiscal Note: These Rules do affect the expenditures of state 
funds. These Rules do not affect the experuiitures of local 
government funds. These Rules do not have a substantial 
economic impact of at least five million dollars ($5,000,000) in 
a 12 -month period. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14V - RULES FOR MENTAL HEALTH, 

DEVELOPMENTAL DISABILITIES, 

AND SUBSTANCE ABUSE FACILITIES 

AND SERVICES 

SECTION .7100 - THOMAS S. DEATH 
REPORTING AND REVIEW 

.7101 SCOPE 

(a) The rules in this Section set forth requirements for 
reporting and reviewing deaths of prospective and confirmed 
Thomas S^ class members residing in non-state operated 
facilities. 

(b) These Rules shall a pply to area mental health, 
developmental disability and substance abuse authorities and 
their contract agencies. 

(c) These requirements shall not apply to prospective and 
confirmed Thomas S^ class members residing in their own 
home or in the home of their family. 

Authority G.S. 108A. Article 6; 122C-112(a)(15); 130A-383; 
130A-389; 130A-398. 

.7102 DEFINITIONS 

In addition to the definitions contained in G.S. 122C-3 and 
Rule .0103 of this Subchapter, the following definitions shall 
also apply: 

(1) "Home Area Program" mean? the responsible Area 
Program where the prospective or confirmed class 



member is legally entitled to services. 

(2) "Master List" means a formal communication process 
maintained by DMH/DD/SAS for identifying 
Thomas S. prospective and confirmed class members 
for planning, evaluation and service provision. 

(3) "Pioneer Unit Cost Reimbursement (PUCR) system" 
means a purchase of service model of funding where 
the Division of MH/DD/SAS reimburses Area 
Programs based on the volume of services reported 
to the Division. 

(4) "Prospective and confirmed class members" means 
those individuals designated on the Thomas S^ 
Master List and assigned to an Area Program. 

(5) "Thomas S. Court Order" means the November 21. 
1988 ruling of Judge James McMillan of the United 
States District Coun for the Western District of 
North Carolina stating that the Secretary of the North 
Carolina Department of Human Resources had 
violated the constitutional rights of a class of 
individuals who were, or had been, confined to 
North Carolina's psychiatric hospitals. This may 
also refer to subsequent supplemental orders issued 
by the District Court. 

(6) "UCR-TS- Unit Cost Reimbursement ; Thomas S^ 
System" means the Division's computerized system 
of reimbursing Area Programs based on the volume 
of Thomas S. services reported to the Division. 

Authority G.S. 108A, Article 6; 122C-112(a)(15); 130A-383; 
130A-389; 130A-398. 

.7103 REPORTING REQUIREMENTS 

(a) The known death of m^ Thomas S^ prospective or 
confirmed class member not residing in a state facility shall be 
immediately reported to the Area Director or designee (usually 
the local Thomas S^ Coordinator) of the class member's home 
catchment area, unless responsibility has been delegated to 
another Area Program through a contractual agreement. The 
date the area authority is notified of the death shall be 
documented. 

(b) A telephone report shall be made to the Thomas S^. 
Services Section. Client Services Branch, by the Area Director 
or designee, on the first working day after being notified of a 
Thomas S^ prospective or confirmed class member's death. 
This report shall be followed up by written notification to the 
Thomas S^ Services Section, and include the date the area 
program was notified of the death. Upon notification of the 
death, any designated staff of the Thomas S. Services Section 
has the authority to go unannounced to the site of the death or 
to the client's residence prior to death. 

(c) The medical examiner of the county in which the body is 
found shall be with regard to deaths under circumstances 
described in G.S. 130A-383. 

(d) Within 72 hours of being notified of a death, the Area 
Director or designee shall ensure that the chairman of the local 
committee responsible for review of the deaths is notified. 

(ej In the case of a death which may be the result of abuse. 



460 



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September 15, 1997 



12:6 



PROPOSED RULES 



neglect, or exploitation, and where there is reason to believe 
that other disabled adults at the site may be abused, neglected 
or exploited and in need of protective services, the procedures 
outlined in G.S. 108A. Article 6 shall be followed. 

(f) In deaths not under the jurisdiction of the medical 
examiner, the next-of-kin or other individual authorized 
according to G.S. 130A-398. shall be notified by the Area 
Director or designee that an autopsy may be requested as 
designated in G.S. 130A-389. 

(g) In the case of a death that occurs as a result of an 
accident, suicide, or other questionable circumstances the police 
shall be notified immediatelv. 

Authority G.S. 108A, Article 6; 122C-ll2(a)(15): 130A-383; 
130A-389; 130A-398. 

.7104 DEATH REVIEW REQUIREMENTS 

The death of any prospective or confirmed class member not 
residing in a state facility shall be reviewed by a local 
committee designated by the Area Director. 

(1) The committee designated to review deaths shall 
include a physician. There must be a provision for 
substitution if existing committee members were 
involved in the case at issue. 

(2) The committee shall review relevant aspects of the 
individual's care in order to identify any acts, 
policies, or practices which may have contributed to 
the death. The committee shall have access to all 
medical records, hospital records and records 
maintained by the State, any county, or any local 
agency necessary to carry out the purposes of this 
subsection, including police investigations data, 
medical examiner investigative data, health records, 
mental health records and social services records, as 
designated in G.S. 122C-112(a)(15). 

(3) The committee shall investigate and analyze any 
circumstances surrounding the death that it considers 
to be unusual, as specified in G.S. 122C-112(a)(15). 

(4) A report from the area authority shall be issued 
following each review and sent to the Thomas S^ 
Services Section. Division of MH/DD/SAS within 
90 days of the death of a confirmed class member, 
and within 90 days of the area program being 
notified of the death of a prospective class member. 
This report shall include the following: 

(a) name and unique ID; 

(b) date and place of death: 

(c) residential and vocational providers and 
addresses: 

(d) age and diagnoses: 

(e) circumstances surrounding the death: 

(f) pertinent medical information/history, 
including the cause of death: 

(g) brief description of staff responses to medical 
needs around the time of death: 

(h) involvement. if applicable. by law 
enforcement or other agencies: 



£ij summary of unusual circumstances leading to 

the death: 
{ji actions taken and recommendations: 
(k) signature of person preparing the report and 

date: 
UQ Area Program medical director review and 

comments, if tlie report was not prepared by 

the medical director: and 
(m) a copy of the death certificate. 
The report shall address any local policies or 
practices that have been or will be revised as a result 
of the review: and state policies or practices that 
should be re-examined as a result of the review. The 
report shall not contain confidential peer review 
information produced solely under the proceedings of 
a quality assurance committee established under G.S. 
122C-191. 
(5) In order to facilitate adequate follow-up and review 
in Area Programs, both the Division's Pioneer UCR 
and Thomas S. unit cost reimbursement systems shall 
recognize earnings for Peer OA Review, case 
management or other relevant services following the 
death of a Thomas S. class member. 

Authority G.S. 108A, Article 6; 122C-112(a)(15); 130A-383; 
130A-389; 130A-398. 

.7105 THOMAS S. MORTALITY REVIEW 
COMMITTEE 

(a) A Thomas S. Mortality Review Committee shall operate 
at the state level and shall be appointed by the Thomas S^ 
Services Section Chief. 

(b) The committee shall at a minimum include a physician 
and a representative of the Thomas S^ Services Section. 

(c) Responsibilities of the committee shall include, but not 
be limited to: 

(1> insuring that reports by local committees include all 
required information, and that they evaluate health 
care and other protection issues relative to the deaths 
of class members and make recommendations where 
appropriate: 

(2) recommending an independent investigation of any 
death it reviews if the Committee deems it necessary: 

(3) assure follow-up by the Thomas S. Services Section 
if the death review report by the local committee is 
not timely or complete: 

(4) identify systemic issues and make recommendations 
addressing those issues to tlie Thomas S^ Services 
Section Chief and Division Director as needed: and 

(5) routinely publish/distribute medical advisories and/or 
information as appropriate to assure needed follow 

id) The Thomas S^ Mortality Review Committee shall have 
access to all medical records. UCR-TS reports. Thomas S^ 
Longitudinal Study data, hospital records and records 
maintained by the State, any county or any local agency 
necessary to carry out the purposes of this subsection, including 



12:6 



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461 



PROPOSED RULES 



police investigations data, medical examiner investigative data, 
health records, mental health records and social services records 
as specified in G.S. 122C-1 12(a)(15). 

(e) When corrective action is deemed necessary by the 
Division Director, the Division Director shall request a 
corrective action plan from the area authority. 

(f) The Chairman of the Thomas S^ Mortality Review 
Committee shall review implementation of recommendations 
made by the committee and corrective action plans established 
bx the Division Director. 

(g) The Committee Chairman shall make an annual status 
repon to the Committee and to the Thomas S^ Services Section 
Chief on implementation and corrective actions taken. 

(h) The Thomas S. Services Section will collect and analyze 
mortality and other statistics to determine trends and quality of 
life issues related to the deaths of Thomas S^ class members. 

(i) The deliberations of local re\iew committees and the 
Thomas S. Monalitv Review Committee shall be confidential. 
Repons of the Thomas S^ Monalitv Review Committee, 
however, are subject to the North Carolina Public Records Act 
and shall be available upon request with due regard to privacy 
and confidentiality of involved persons. 

Authority G.S. W8A, Ankle 6; 122C-112(a)(15j; 130A-383; 
130A-389: 130A-398. 



TITLE ISA - DEPARTMENT OF ENVmONMENT. 
HEALTH, AND NATURAL RESOURCES 

Notice is hereby given in accordance v,ith G.S. 150B-21.2 
thai the EHNR - Emironmental Management Commission 
intends to amend rule cited as ISA NCAC 2B .0202; and adopt 
rules cited as ISA NCAC 2B .0232 - .0236. .0238 - .0240. 
Notice of Rule-making Proceedings was published in the 
Register on April 75, 7996. 

Proposed Effective Date: August 7, 7995 

Public Hearings will both be conducted at 7:00 p.m. on 

October 7, 1997 at the following locations. You may sign up 

to speak beginning at 6:30 p.m. 

Raleigh - State Highway Building Auditorium, 11 South 

Wilmington Street 

New Bern - Craven County Courthouse. 302 Broad Street 

Reason for Proposed Action: This Notice of Text and Hearing 
announces two public hearings to be held on the proposed 
revised Nutrient Sensitive Waters Management Strategy for the 
Neuse River Basin. The revised strategy and public hearings 
will be noticed in the North Carolina Register on September IS. 
1997. Public hearings are scheduled for October 1997 in 
Raleigh and Ne^v Bern. 

Public hearings on the original Neuse River Nutrient Sensitive 
Waters Management Strategy were held in November 1996. 
After the November 1996 public hearings, the members of the 



Environmerual Management Commission (EMC) that served as 
Hearing Officers worked with DWQ staff to revise the strategy 
to address the numerous verbal and written comments that were 
received. The rules were revised to allow regulated parties 
more flexibility and to give the state greater assurance that the 
rules ' goals would be met. 

In 1 988, the EMC classified the entire Neuse River Basin as 
Nutrient Sensitive Waters (NSW). They adopted this 
classification due to nutrient-related water quality problems in 
the freshwater sections between Kinston and New Bern. At that 
time, the EMC adopted a Nutrient Management Strategy to 
improve water quality in the river. This initial NSW strategy 
addressed phosphorus reductions through point source controls 
and nitrogen from the voluntary implementation of agricultural 
best management practices (BMPs). The strategy was 
successful and phosphorus loading has declined due to these 
point source controls and the phosphate detergent ban. 

Even with the management measures adopted in the initial NSW 
strategy, water quality problems in the lower Neuse River 
continue, especially below New Bern. For example, during 
July, September, and October 199S, widespread fish kills 
occurred in the Neuse River, mainly from New Bern to 
Minnesott Beach. Millions offish were killed. The water was 
lacking oxygen near the surface and algal blooms were 
common. Because of these continued water quality problems, 
the EMC intends to revise the NSW strategy and to focus on 
nitrogen loading to the estuary. 

The current Nutrieru Sensitive Waters Management Strategy for 
the Neuse River includes the following rules: 

• Definitions (ISA NCAC 2B .0202). 

• Basin Nutrient Reduction Goal (ISA NCAC 2B .0232). 

» Maintenance of Existing Riparian Areas (ISA NCAC 2B 
.0233), 

• Wastewater Discharge Requirements (ISA NCAC 2 B .0234), 

• Basinwide Stormwater Requirements (ISA NCAC 2B .0235), 

• Agricultural Nitrogen Loading Reduction (ISA NCAC 2B 
.0234), 

• Agricultural Nitrogen Reduction Strategy (ISA NCAC 2B 
.023S), 

• Nutrient Management (ISA NCAC 2B .0235), and 

• Nutrient Offset Payments (ISA NCAC 2B .0236). 

Comment Procedures: The purpose of the announcement is to 
encourage those interested in this proposal to provide 
comments. You may submit comments, statements, data and 
other information in writing prior to, during or afier the 
hearing but no later than November 14, 1997. You may also 
present verbal comments at the hearing. The Hearing Officer 
may limit the length of time that you speak so that all those who 
wish to speak may have an opportunity to do so. We encourage 
you to submit written comments. It is very important that all 
interested and potentially affected persons or parties make their 
views known to the Environmental Management Commission 
(EMC) whether in favor of or opposed to any and all provisions 



462 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



of the proposal being noticed. If opposed to any or all 
provisions of the proposal we encourage you to offer 
appropriate alternative proposals. Written comments may be 
submitted to: 

Greg Thorpe 

DEHNR/Division of Water Quality 

PO Box 29535 

Raleigh, NC 27626-0535 

Questions concerning proposed requirements for point source 

dischargers may be directed to Coleen Sullins at (919) 733- 

5083, ext. 550 and questions concerning proposed nonpoint 

source requirements to Greg Thorpe at (919) 733-5083, ext. 

557. In the case of inclement weather, please call (919) 733- 

5083, ext. 557 for a recording on whether the hearings will be 

held as scheduled. 

Fiscal Note: These Rules do affect the expenditures or revenues 
of state or local government funds. These Rules do have a 
substantial economic impact of at least five million dollars 
($5,000,000) in a 12-month period. 

CHAPTER 2 - ENVIRONMENTAL MANAGEMENT 

SUBCHAPTER 2B - SURFACE WATER 
AND WETLAND STANDARDS 

SECTION .0200 - CLASSIFICATIONS AND WATER 

QUALITY STANDARDS APPLICABLE TO 

SURFACE WATERS AND WETLANDS OF 

NORTH CAROLINA 

.0202 DEFINITIONS 

The definition of any word or phrase used in this Section 
shall be the same as given in Article 21, Chapter 143 of the 
General Statutes of North Carolina. The following words and 
phrases, which are not defined in this article, shall be 
interpreted as follows: 

(1) Acute toxicity to aquatic life means lethality or other 
harmful effects sustained by either resident aquatic 
populations or indicator species used as test 
organisms in a controlled toxicity test due to a 
short-term exposure (relative to the life cycle of the 
organism) to a specific chemical or mixture of 
chemicals (as in an effluent). Short-term exposure 
for acute tests is generally 96 hours or less. Acute 
toxicity shall be determined using the following 
procedures: 

(a) for specific chemical constituents or 
compounds, acceptable levels shall be 
equivalent to a concentration of one-half or 
less of the Final Acute Value (FAV) as 
determined according to "Guidelines for 
Deriving Numerical Water Quality Criteria for 
the Protection of Aquatic Life and its Uses" 
published by the Environmental Protection 
Agency and referenced in the Federal Register 
(50 FR 30784, July 29, 1985) which is hereby 



incorporated by reference including any 
subsequent amendments. 

(b) for specific chemical constituents or 
compounds for which values described under 
Subparagraph (l)(a) of this Rule can not be 
determined, acceptable levels shall be 
equivalent to a concentration of one-third or 
less of the lowest available LC50 value. 

(c) for effluents, acceptable levels are defined as 
no statistically measurable lethality (99 
percent confidence level using Students t test) 
during a specified exposure period. 
Concentrations of exposure shall be 
determined on a case -by-case basis. 

(d) in instances where detailed dose response data 
indicate that levels of acute toxicity are 
significantly different from those defined in 
this Rule, the Director may determine on a 
case-by-case basis an alternate acceptable level 
through statistical analyses of the dose 
response curve. 

(2) Acute to Chronic Ratio (ACR) means the ratio of 
acute toxicity expressed as an LC50 for a specific 
toxicant or an effluent to the chronic value for the 
same toxicant or effluent. 

(3) Agricultural uses include the use of waters for stock 
watering, irrigation, and other farm purposes. 

(4) A pplicator means any person, firm, corporation, 
wholesaler, retailer, distributor, any local, state, or 
federal governmental agency, or any other person 
who applies fertilizer to the land of a consumer or 
client or to land they own or to land which they lease 
or otherwise hold rights. 

(5) (4) Approved treatment, as applied to water 
supplies, means treatment accepted as satisfactory by 
the Division of Environmental Health or Division of 
Water Quality. 

(6) (5) Average (except bacterial) means arithmetical 
average and includes the analytical results of all 
samples taken during the specified period; all 
sampling shall be done as to obtain the most 
representative sample under prevailing conditions: 

(a) Daily Average for dissolved oxygen, shall be 
of at least four samples; 

(b) Weekly Average means the average of all 
daily composite samples obtained during the 
calendar week. If only one grab sample is 
taken each day, the weekly average is the 
average of all daily grab samples. A 
minimum of three daily grab samples is 
needed to calculate a weekly average. 

(c) Monthly Average means the average of all 
daily composites (or grab samples if only one 
per day) obtained during the calendar month. 

The definitions in this Paragraph do not affect the 
monitoring requirements for NPDES permits but 
rather shall be used by the Division along with other 



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methodologies in determining violations of water 
quality standards. Arithmetical averages as defined 
by this Section, and not confidence limits nor other 
statistical descriptions, shall be used in all 
calculations of limitations which require the use of 
averages pursuant to this Section and 40 CFR 
122.41(l)(4)(iii). 

(7) i€i Best Management Practice (BMP) means a 
structural or nonstructural management-based 
practice used singularly or in combination to reduce 
nonpoint source inputs to receiving waters in order to 
achieve water quality protection goals. 

(8) t?) Best usage of waters as specified for each class 
means those uses as determined by the Environmental 
Management Commission in accordance with the 
provisions of G.S. 143-214.1. 

(9) t%) Bioaccumulation factor (BAF) is a unitless value 
that describes the degree to which substances are 
taken up or accumulated into tissues of aquatic 
organisms from water directly and from food or 
other ingested materials containing the accumulated 
substances, and is usually measured as a ratio of a 
substance's concentration in tissue versus its 
concentration in water in situations where exposure 
to the substance is occurring from both water and the 
food chain. 

(10) (9) Bioconcentration factor (BCF) is a unitless value 
that describes the degree to which substances are 
absorbed or concentrated into tissues of aquatic 
organisms from water directly and is usually 
measured as a ratio of substance's concentration in 
tissue versus its concentration in water in situations 
where exposure to the substance is occurring from 
water only. 

(11) f+&) Biological integrity means the ability of an 
aquatic ecosystem to support and maintain a balanced 
and indigenous community of organisms having 
species composition, diversity, population densities 
and functional organization similar to that of 
reference conditions. 

(12) f4-H Buffer means a natural or vegetated area 
through which stormwater runoff flows in a diffuse 
maimer so that the runoff does not become 
channelized and which provides for infiltration of the 
runoff and filtering of pollutants. The buffer shall be 
measured landward from the normal pool elevation 
of impounded structures and from the bank of each 
side of streams or rivers. 

(13) t+^ Built-upon area means that ponion of a 
development project that is covered by impervious or 
partially impervious cover including buildings, 
pavement, gravel areas (e.g. roads, parking lots, 
paths), recreation facilities (e.g. termis courts), etc. 
(Note: Wooden slatted decks and the water area of a 
swimming pool are considered pervious.) 

(14) f-1^ Chronic toxicity to aquatic life means any 
harmful effect sustained by either resident aquatic 



15) 



(16) 



11) 



(18) 



19) 



(20) 



populations or indicator species used as test 
organisms in a controlled toxicity test due to 
long-term exposure (relative to the life cycle of the 
organism) or exposure during a substantial portion of 
the duration of a sensitive period of the life cycle to 
a specific chemical substance or mixture of chemicals 
(as in an effluent). In absence of extended periods of 
exposure, early life stage or reproductive toxicity 
tests may be used to define chronic impacts. 
thH Chronic value for aquatic life means the 
geometric mean of two concentrations identified in a 
controlled toxicity test as the No Observable Effect 
Concentration (NOEC) and the Lowest Observable 
Effect Concentration (LOEC). 
(-i5) Cluster development means the grouping of 
buildings in order to conserve land resources and 
provide for irmovation in the design of the project 
including minimizing stormwater runoff impacts. 
This term includes nonresidential development as 
well as single-family residential and multi-family 
developments. For the purpose of Sections .0100, 
.0200 and .0300 of this Subchapter, planned unit 
developments and mixed use development shall be 
considered as cluster development. 
Commercial applicator means any person, firm, 
corporation, wholesaler, retailer, distributor or any 
other person who for hire or compensation applies 
fertilizer to the land of a consumer or client. 
tWt Concentrations are the mass of a substance per 
volume of water and for the purposes of this Section 
shall be expressed as milligrams per liter (mg/1), 
micrograms per liter (ug/1), or nanograms per liter 
(ng/1). 

f+^ Contiguous refers to those wetlands landward 
of the mean high water line or normal water level 
and within 575 feet of classified surface waters which 
appear as solid blue lines on the most recently 
published versions of U.S. G.S. 1:24,000 (7.5 
minute) scale topographic maps. 
i-\%) Critical area means the area adjacent to a water 
supply intake or reservoir where risk associated with 
pollution is greater than from the remaining ponions 
of the watershed. The critical area is defined as 
extending either Vz mile from the normal pool 
elevation of the reservoir in which the intake is 
located or to the ridge line of the watershed 
(whichever comes first); or '/: mile upstream from 
and draining to the intake (or other appropriate 
downstream location associated with the water 
supply) located directly in the stream or river 
(run-of-the-river), or to the ridge line of the 
watershed (whichever comes first). Since WS-I 
watersheds are essentially undeveloped, 
establishment of a critical area is not required. Local 
governments may extend the critical area as needed. 
Major landmarks such as highways or property lines 
may be used to delineate the outer boundary of the 



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critical area if these landmarks are immediately 
adjacent to the appropriate outer boundary of Vz 
mile. The Commission may adopt a different critical 
area size during the reclassification process. 

(21) Cropland means agricultural land that is not covered 
by a certified animal waste management plan and is 
used for growing com, grains, oilseed crops, cotton, 
forages, tobacco, beans, or other vegetables or fruits. 

(22) t+^ Designated Nonpoint Source Agency means 
those agencies specified by the Governor in the 
North Carolina Nonpoint Source Management 
Program, as approved by the Environmental (30) 
Protection Agency. 

(23) (26) Development means any land disturbing 
activity which adds to or changes the amount of 
impervious or partially impervious cover on a land 
area or which otherwise decreases the infiltration of 
precipitation into the soil. 

(24) (2i) Director means the Director of the Division of 
Water Quality. 

(25) t^^t Discharge is the addition of any man-induced 
waste effluent either directly or indirectly to state 

surface waters. (31) 

(26) (23) Division means the Division of Water Quality 
or its successors. 

(27) (24) Domestic wastewater discharge means the 
discharge of sewage, non-process industrial 
wastewater, other domestic wastewater or any 
combination of these items. Domestic wastewater 
includes, but is not limited to, liquid waste generated 
by domestic water using fixtures and appliances, 
from any residence, place of business, or place of 
public assembly even if it contains no sewage. 
Examples of domestic wastewater include (32) 
once-through non-contact cooling water, seafood 
packing facility discharges and wastewater from 
restaurants. (33) 

(28) (25) Effluent channel means a discemable confined 
and discrete conveyance which is used for 
transporting treated wastewater to a receiving stream 
or other body of water as provided in Rule .0215 of 

this Section. (34) 

(29) (26) Existing development, for projects that do not 
require a state permit, shall be defined as those 
projects that are built or those projects that at a (35) 
minimum have established a vested right under North 
Carolina zoning law as of the effective date of the 

local government water supply ordinance, or such 
earlier time that an affected local government's 
ordinances shall specify, based on at least one of the 
following criteria: 

(a) substantial expenditures of resources (time, 
labor, money) based on a good faith reliance 
upon having received a valid local government 
approval to proceed with the project, or 

(b) having an outstanding valid building permit in 
compliance with G.S. 153A-344.1 or G.S. 



160A-385.1, or 
(c) having an approved site specific or phased 

development plan in compliance with G.S. 

153A-344.1 or G.S. 160A-385.1. 
For projects that require a state permit, such as 
landfills, NPDES wastewater discharges, land 
application of residuals and road construction 
activities, existing development shall be defined as 
those projects that are built or those projects for 
which a state permit was issued prior to August 3, 
1992. 

(2?) Existing uses mean uses actually attained in the 
water body, in a significant and not incidental 
manner, on or after November 28, 1975, whether or 
not they are included in the water quality standards, 
which either have been actually available to the 
public or are uses deemed attainable by the 
Environmental Management Commission. At a 
minimum, uses shall be deemed attainable if they can 
be achieved by the imposition of effluent limits and 
cost-effective and reasonable best management 
practices (BMPs) for nonpoint source control. 

(28) Family subdivision means a division of a tract 
of land: 

(a) to convey the resulting parcels, with the 
exception of parcels retained by the grantor, to 
a relative or relatives as a gift or for nominal 
consideration, but only if no more than one 
parcel is conveyed by the grantor from the 
tract to any one relative; or 

(b) to divide land from a common ancestor among 
tenants in common, all of whom inherited by 
intestacy or by will. 

Fertilizer means any substance containing nitrogen or 
phosphorus which is used primarily for its plant food 
content. 

(29) Fishing means the taking of fish by sport or 
commercial methods as well as the consumption of 
fish or shellfish or the propagation of fish and such 
other aquatic life as is necessary to provide a suitable 
environment for fish. 

(36) Freshwater means all waters that under natural 
conditions would have a chloride ion content of 500 
mg/1 or less. 

(M) Industrial discharge means the discharge of 
industrial process treated wastewater or wastewater 
other than sewage. Stormwater shall not be 
considered to be an industrial wastewater unless it is 
contaminated with industrial wastewater. Industrial 
discharge includes: 

(a) wastewater resulting from any process of 
industry or manufacture, or from the 
development of any natural resource; 

(b) wastewater resulting from processes of trade 
or business, including wastewater from 
laundromats and car washes, but not 
wastewater from restaurants; or 



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(c) wastewater discharged from a municipal (44) 

wastewater treatment plant requiring a 
pretreatment program. 

(36) t*^ LC50 means that concentration of a toxic 
substance which is lethal (or immobilizing, if 
appropriate) to 50 percent of the organisms tested 

during a specified exposure period. The LC50 (45) 

concentration for toxic materials shall be determined 
for sensitive species as defined by Subparagraph (43) 
of this Rule under aquatic conditions characteristic of 
the receiving waters. 

(37) (3^ Local government means a city or county in 
singular or plural as defined in G.S. 160A-1(2) and 

G.S. I58A-10. 146) 

(38) (34) Lower piedmont and coastal plain waters mean 
those waters of the Catawba River Basin below 
Lookout Shoals Dam; the Yadkin River Basin below 

the junction of the Forsyth, Yadkin, and Davie (47) 

County lines; and all of the waters of Cape Fear, 
Lumber, Roanoke, Neuse, Tar-Pamlico, Chowan, 
Pasquotank, and White Oak River Basins; except 
tidal salt waters which are assigned S classifications. 

(39) (35) MF is an abbreviation for the membrane filter (48) 
procedure for bacteriological analysis. 

(40) (3^ Major variance means a variance from the 
minimum statewide watershed protection rules that 
results in the relaxation, by a factor greater than five 
percent of any buffer, density or built-upon area 
requirement under the high density option; any 
variation in the design, maintenance or operation 
requirements of a wet detention pond or other 
approved stormwater management system; or 
relaxation by a factor greater than 10 percent, of any 
management requirement under the low density 
option. 

(41) (3^ Minor variance means a variance from the 
minimum statewide watershed protection rules that (49) 
results in a relaxation, by a factor of up to five 

percent of any buffer, density or built-upon area 

requirement under the high density option; or that 

results in a relaxation by a factor up to 10 percent, of 

any management requirement under the low density (50) 

option. 

(42) (38t Mixing zone means a region of the receiving 
water in the vicinity of a discharge within which 
dispersion and dilution of constituents in the (51) 
discharge occurs and such zones shall be subject to 
conditions established in accordance with 15 A 

NCAC 2B .0204(b). 

(43) (39) Mountain and upper piedmont waters mean all 
of the waters of the Hiwassee; Little Teimessee, 
including the Savannah River drainage area; French 
Broad; Broad; New; and Watauga River Basins; and 
those portions of the Catawba River Basin above 
Lookout Shoals Dam and the Yadkin River Basin 
above the junction of the Forsyth, Yadkin, and Davie 
Coimty lines. 



(40) Nonconfonning lot of record means a lot 
described by a plat or a deed that was recorded prior 
to the effective date of local watershed regulations 
(or their amendments) that does not meet the 
minimum lot-size or other development requirements 
of Rule .0211 of this Subchapter. 
(4+) Nonpoint source pollution means pollution 
which enters waters mainly as a result of 
precipitation and subsequent runoff from lands which 
have been disturbed by man's activities and includes 
all sources of water pollution which are not required 
to have a permit in accordance with G.S. 
143-215. 1(c). 

(42) Non-process discharge means industrial effluent 
not directly resulting from the manufacturing 
process. An example would be non-contact cooling 
water from a compressor. 

(43t Nutrient sensitive waters mean those waters 
which are so designated in the classification schedule 
in order to limit the discharge of nutrients (usually 
nitrogen and phosphorus). They are designated by 
"NSW" following the water classification. 

(44) Offensive condition means any condition or 
conditions resulting from the presence of sewage, 
industrial wastes or other wastes within the waters of 
the state or along the shorelines thereof which shall 
either directly or indirectly cause foul or noxious 
odors, unsightly conditions, or breeding of 
abnormally large quantities of mosquitoes or other 
insect pests, or shall damage private or public water 
supplies or other structures, result in the 
development of gases which destroy or damage 
surrounding property, herbage or grasses, or which 
may cause the impairment of taste, such as from fish 
flesh tainting, or affect the health of any person 
residing or working in the area. 

(45) Primary Nursery Areas (PNAs) are tidal 
saltwaters which provide essential habitat for the 
early development of commercially important fish 
and shellfish and are so designated by the Marine 
Fisheries Commission. 

(4^ Primary recreation includes swimming, skin 
diving, skiing, and similar uses involving human 
body contact with water where such activities take 
place in an organized or on a frequent basis. 
(4?) Protected area means the area adjoining and 
upstream of the critical area in a WS-IV water supply 
in which protection measures are required. The 
boundaries of the protected areas are defined as 
within five miles of the normal pool elevation of the 
reservoir and draining to water supply reservoirs 
(measured from the normal pool elevation) or to the 
ridge line of the watershed (whichever comes first); 
or 10 miles upstream and draining to the intake 
located directly in the stream or river 
(run-of-the-river), or to the ridge line of the 
watershed (whichever comes first). Local 



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governments may extend the protected area. Major 
landmarks such as highways or property lines may be (58) 

used to delineate the outer boundary of the protected 
area if these landmarks are immediately adjacent to 
the appropriate outer boundary of five or 10 miles. 
In some cases the protected area shall encompass the 
entire watershed. The Commission may adopt a 
different protected area size during the 
reclassification process. 

(52) (4^ Residential development means buildings for 
residence such as attached and detached single family 
dwellings, apartment complexes, condominiums, 
townhouses, cottages, and their associated (59) 
outbuildings such as garages, storage buildings, and 
gazebos. 

(53) (49) Residuals means any solid or demisolid waste 
generated from a wastewater treatment plant, water 
treatment plant or air pollution control facility 
permitted under the authority of the Environmental 
Management Commission. (60) 

(54) Riparian area means an area of trees, usually 
accompanied by shrubs and other vegetation, that is 
adjacent to a body of water which is managed to 
reduce the impact of upland sources of pollution by 
trapping, filtering, and converting nutrients, 
sediments, and other chemicals: maintain the 
integrity of stream channels, shorelines, and flood 

storage processes: and to su pply food, cover, and (61) 

thermal protection for fish and other aquatic life. 

(55) f5di Secondary recreation includes wading, boating, 
other uses not involving human body contact with 
water, and activities involving human body contact 

with water where such activities take place on an (62) 

infrequent, unorganized, or incidental basis. 

(56) t^ft Sensitive species for aquatic toxicity testing is 
any species utilized in procedures accepted by the 
Commission or its designee in accordance with Rule 
.0103 of this Subchapter, or the following genera; 

(a) Daphnia: 

(b) Ceriodaphnia; 

(c) Salmo; 

(d) Pimephales; 

(e) Mysidopsis; 

(f) Champia; £63} 

(g) Cyprinodon; 
(h) Arbacia; 

(i) Penaeus; 

(j) Menidia; 
(k) Notropis; 

(1) Salvelinus; 
(m) Oncorhynchus; 

(n) Selenastrum; (64) 

(o) Chironomus; 
(p) Hyalella; 
(q) Lumbriculus. (65) 

(57) (52) Shellfish culture includes the use of waters for 
the propagation, storage and gathering of oysters. 



clams, and other shellfish for market purposes. 

(53) Stormwater collection system means any 
conduit, pipe, channel, curb or gutter for the primary 
purpose of transporting (not treating) runoff. A 
stormwater collection system does not include 
vegetated swales, swales stabilized with armoring or 
alternative methods where natural topography 
prevents the use of vegetated swales (subject to 
case-by-case review), curb outlet systems or pipes 
used to carry drainage imdemeath built-upon surfaces 
that are associated with development controlled by 
the provisions of 15A NCAC 2H .1003(c)(1). 

(54) Source of water supply for drinking, culinary 
or food-processing purposes means any source, either 
public or private, the waters from which are used for 
human consumption, or used in connection with the 
processing of milk, beverages, food, or other 
purpose which requires water suitable for human 
consumption. 

(55) Swamp waters mean those waters which are 
classified by the Environmental Management 
Commission and which are topographically located 
so as to generally have very low velocities and other 
characteristics which are different from adjacent 
streams draining steeper topography. They are 
designated by "Sw" following the water 
classification. 

(56) Tidal salt waters mean all tidal waters which 
are classified by the Environmental Management 
Commission which generally have a natural chloride 
ion content in excess of 500 parts per million and 
include all waters assigned S classifications. 

(5^ Toxic substance or toxicant means any 
substance or combination of substances (including 
disease -causing agents), which after discharge and 
upon exposure, ingestion, inhalation, or assimilation 
into any organism, either directly from the 
environment or indirectly by ingestion through food 
chains, has the potential to cause death, disease, 
behavioral abnormalities, cancer, genetic mutations, 
physiological malfunctions (including malfunctions 
or suppression in reproduction or growth) or physical 
deformities in such organisms or their offspring. 

(58) Trout waters are those waters which have 
conditions which shall sustain and allow for trout 
propagation and survival of stocked trout on a 
year-round basis. These waters shall be classified by 
the Commission after considering the requirements of 
Rule .0101(b) and (c) of this Subchapter and include 
all waters designated by "Tr" in the water 
classification. 

(59) Waste disposal includes the use of waters for 
disposal of sewage, industrial waste or other waste 
after approved treatment. 

(66) Water dependent structures are those structures 
for which the use requires access or proximity to or 
siting within surface waters to fulfill its basic 



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467 



PROPOSED RULES 



purpose, such as boat ramps, boat houses, docks and 
bulkheads. Ancillary facilities such as restaurants, 
outlets for boat supplies, parking lots and 
commercial boat storage areas are not water 
dependent structures. 

(66) t^r+i Water quality based effluent limits and best 
management practices are limitations or best 
management practices developed by the Division for 
the purpose of protecting water quality standards and 
best usage of surface waters consistent with the 
requirements of G.S. 143-214.1 and the Federal 
Water Pollution Control Act as amended. 

(67) (6^ Waters with quality higher than the standards 
means all waters for which the determination of 
waste load allocations (pursuant to Rule .0206 of this 
Section) indicates that water quality is sufficiently 
greater than that defined by the standards such that 
significant pollutant loading capacity still exists in 
those waters. 

(68) t€ii Watershed means the entire land area 
contributing surface drainage to a specific point. For 
the purpose of the water supply protection rules in 
15A NCAC 2B .0104 and .0211 local governments 
may use major landmarks such as highways or 
property lines to delineate the outer boundary of the 
drainage area if these landmarks are immediately 
adjacent to the ridgeline. 

(69) t^ Wetlands are "waters" as defined by G.S. 143- 
212(6) and are areas that are inundated or saturated 
by an accumulation of surface or ground water at a 
frequency and duration sufficient to support, and that 
under normal circumstances do support, a prevalence 
of vegetation typically adapted for life in saturated 
soil conditions. Wetlands generally include swamps, 
marshes, bogs and similar areas. Wetlands classified 
as waters of the state are restricted to waters of the 
United States as defined by 33 CFR 328.3 and 40 
CFR 230.3. 

Authority G.S. 143-214.1; 143-215. 3(a)(1). 

.0232 >fEUSE RIVER BASIN- NUTRIENT SENSITIVE 
WATERS MANAGEMENT STRATEGY: BASIN 
NUTRIENT REDUCTION GOAL 

Pursuant to 1995 (Reg. Sess.. 1996) N.C. Session Laws, c. 
572. the Environmental Management Commission hereby 
establishes the goal of reducing the average annual load of 
nitrogen delivered to the Neuse River Estuar>' from point and 
nonpoint sources by a minimum of 30 percent of the average 
annual load for the period 1991 through 1995 by the year 2001. 
All waters of the Neuse River Basin have been supplementally 
classified as Nutrient Sensitive Waters (NSW) pursuant to 15A 
NCAC 2B .0223. NSW Management requirements are to be 
implemented in accordance with 15A NCAC 2B .0223 in all 
waters of the Neuse River Basin as specified in the following 
rules of this Section: 

(1) Rule .0233 for protection and maintenance of 



existing forested riparian areas. 

(2) Rule .0234 for wastewater discharges. 

(3) Rule .0235 for urban stormwater management. 

(4) Rules .0236 and .0238 for agricultural nitrogen 
reduction. 

(5) Rule .0239 for nutrient management, and 

(6) Rule .0240 for nitrogen offset fees. 



Authority G.S. 
215.3(a)(1). 



.0233 



143-214.1; 143-214.7; 143-215.1; 143- 



NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: PROTECTION AND 

MAINTENANCE OF EXISTING RIPARIAN 
AREAS 
The following is the management strategy for maintaining 
and protecting existing riparian areas in the Neuse River Basin: 
( 1) Existing riparian areas shall be protected and 
maintained m accordance with Sub-Items (3)(a)-(e) of 
this Rule on all sides of surface waters in the Neuse 
River Basin (intermittent streams, perennial streams, 
lakes, and estuaries) as indicated on the most recent 
versions of United States Geological Survey 
1:24.000 scale (7.5 minute quadrangle) topographic 
maps or other site-specific evidence. This Rule only 
applies to riparian areas where forest vegetation is 
established in Zone 1 (as described in Sub-Item 3(a) 
of this Rule) as of June 12. 1997. This Rule does 
not establish new buffers in riparian areas. 
Exceptions to the requirements of this Rule for 
existing riparian areas are described in Sub-Items 
(l)(a)-(h) of this Rule. Maintenance of the riparian 
areas should be such that, to the maximum extent 
possible, sheet flow of surface water is achieved. 
Any activities that would result in water quality 
standard violations or that disrupt the structural or 
functional integrity of the riparian area are 
prohibited. The following waterbodies and land uses 
are exempt from the riparian area protection 
requirements: 

(a) Ditches and manmade conveyances other than 
modified natural streams: 

(b) Areas mapped as intermittent streams, 
perennial streams, lakes, or estuaries on the 
most recent versions of United States 
Geological Survey 1:24.000 scale (7.5 minute 
quadrangle) topographic maps where no 
perennial or intermittent waterbody actually 
exists on the ground: 

(c) Ponds and lakes created for animal watering, 
irrigation, or other agricultural uses that are 
not part of a natural drainage way that is 
classified in accordance with 15A NCAC 2B 
.0100: 

(d) Where application of this Rule would prevent 
all prospective uses of a lot platted and 



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recorded prior to the effective date of this 
Rule, a variance may be granted by the 
Environmental Management Commission: 

(e) New development in the riparian area shall be 
limited to water dependent structures as 
defined in 15 A NCAC 2B .0202. Any such 
structures shall be located, designed, 
constructed and maintained to provide 
maximum nutrient removal, to have the least 
adverse effects on aquatic life and habitat and 
to protect water qualitv: 

£0 Roads, bridges, stormwater management 
facilities, ponds, and utilities may be allowed 
where no practical alternative exists. These 
structures shall be located, designed, 
constructed, and maintained to have minimal 
disturbance, to provide maximum nutrient 
removal and erosion protection, to have the 
least adverse effects on aquatic life and 
habitat, and to protect water qualitv to the 
maximum extent practical through the use of 
best management practices: 

(g) Stream restoration projects, scientific studies, 
stream gauging, water wells, passive 
recreation facilities such as boardwalks, trails. 
pathways. historic preservation and 
archaeological activities are allowed: and 

(h) Stream crossings associated with timber 
harvesting are allowed if performed in 
accordance with the Forest Practices 
Guidelines Related to Water Quality (15A 
NCAC IJ .0201 -.0209). 
(2) If a local government has been issued a Municipal 

Separate Stormwater Sewer System permit or has 

been delegated to implement a local stormwater 
, then the local government shall ensure that 



program. 



I 



the riparian areas to be protected are, as a standard 

practice, recorded on plats as easements. 
(3) The protected riparian area shall have two zones as 

follows: 

(a) Zone 1 is intended to be an undisturbed forest. 
Zone 1 begins at the centerline of the channel 
for intermittent streams and perennial streams 
without tributaries and extends landward a 
distance of 30 feet on all sides of the 
waterbodv. measured horizontally on a line 
perpendicular to the waterbody . For all other 
waterbodies. Zone 1 begins at the upper edge 
of the active channel of the surface waterbody 
(bank-full flow) or the mean high water line 
and extends landward a distance of 30 feet, 
measured horizontally on a line perpendicular 
to tlie waterbody. Forest vegetation of any 
width that exists in Zone 1 on the effective 
date of this Rule must be preserved and 
maintained in accordance with Sub-Items (i)- 
(v) of this Rule. The application of fertilizer 



in Zone I is prohibited. The following 

practices and activities are allowed in Zone 1 : 
£i} Natural regeneration of forest 
vegetation is allowed and planting 
vegetation to enhance the riparian zone 
is allowed if disturbance is minimized. 
Any plantings should primarily consist 
of locally native trees and shrubs: 

(ii) Selective removal of individual high 
value trees is allowed where water 
quality values are not compromised. 
Limited mechanized equipment is 
allowed in this area: 

(iii) Horticulture practices may be used to 
maintain the health of individual trees: 

(iv) Individual trees may be removed which 
are in danger of causing damage to 
dwellings, other structures, or the 
stream channel: and 

(v) Other timber cutting techniques 
approved by the Department may be 
undertaken if necessary to prevent 
extensive pest or disease infestation. 

(b) Zone 2 begins at the outer edge of Zone 1 and 
extends landward a minimum of 20 feet as 
measured horizontally on a line perpendicular 
to the waterbody. The combined minimum 
width of Zones i and 2 shall be 50 feet on all 
sides of the waterbody. Vegetation in Zone 2 
shall consist of a dense ground cover 
composed of herbaceous or woody species 
which provides for diffiision and infiltration of 
runoff and filtering of pollutants. The 
following practices and activities are allowed 
in Zone 2 in addition to those allowed in Zone 
ll Removal of grass clippings or plant 
products such as timber, nuts, and fruit is 
allowed on a periodic and regular basis 
provided the intended purpose of the riparian 
area is not compromised by harvesting, 
disturbance, or loss of forest or herbaceous 
ground cover. Forest vegetation in Zone 2 
may be managed to minimize shading on 
adjacent land if the water quality function of 
the riparian area is not compromised. The 
following practices and activities are not 
allowed in Zone 2i 

£i} New permanent structures: 
(ii) New on-site sanitarv sewage systems 

which use ground adsorptions: 
(iii) Activities that would result in water 

quality standards violations or disrupt 

the structural or functional integrity of 

the riparian area. 

(c) Timber removal and skidding of trees shall be 
directed away from the water course or water 
body. Skidding shall be done in a manner to 



12:6 



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469 



PROPOSED RULES 



prevent the creation of ephemeral channels 
perpendicular to the water body. An\' tree 
removal must be performed in a manner that 
does not compromise the intended purpose of 
the riparian area and is in accordance with the 
Forest Practices Guidelines Related to Water 
Quality (15A NCAC IJ .0201-. 0209). 

(d) Maintenance of Zones 1 and 2 is required. 
Sheet flow must be maintained to the 
maximum extent practical through dispersing 
concentrated flow and/or re-establishment of 
vegetation to maintain the effectiveness of the 
riparian area. Periodic corrective action to 
restore sheet flow must be taken by the 
landowner if necessary to impede the 
formation of erosion gullies which allow 
concentrated flov.' to bypass treatment in the 
riparian area. 

(e) Periodic maintenance of modified natural 
streams such as canals is allowed provided that 
dismrbance is minimized and the structure and 
function of tlie riparian area is not 
compromised. A grassed travelwa\- is allowed 
on one side of the waierbody when alternative 
forms of maintenance access are not practical. 
The width and specifications of the travelway 
shall be only that needed for equipment access 
and operation. The travelwav should be 
located to maximize stream shading. 

(4} Where the standards and management requirements for 
riparian areas are in conflict with other laws, 
regulations, and permits regarding streams, steep slopes, 
erodible soils, wetlands, floodplains. forest harvesting, 
surface minmg. land disturbance activities, development 
in Coastal Area Management Act .Areas of 
Environmental Concern, or other en\ironmental 
protection areas, the more protective shall apph' so long 
as they are in effect. 

Authority G.S. 143-214.1; 143-214.7; 143-215. 3(a)(1). 

.0234 NEUSE RTVER BASIN - NUTRIENT 
SENSITIVE WATERS MANAGEMENT 
STRATEGY: WASTEWATER DISCIL\RGE 
REQUIREMENTS 

The following is the wastewater discharge management 
strategy for the Neuse River Basin: 

(1) All new and expanding dischargers will be required 
to document that all practical alternatives to surface 
water discharge were evaluated pursuant to 15A 
NCAC 2H .0105(c)(2). prior to a submittal of an 
application for a discharge. For purposes of this 
Rule, permitted discharges means those individually 
permuted and not those covered under general 
permits. 

(2) Ail wastewater dischargers greater than or equal to 
0.5 million gallons per day (.MGD) permitted flow. 



regardless of current loading levels, are required to 
evaluate and optimize the operation of their facilities 
in order to reduce nutrient loadings. One year after 
the effective date of this Rule, a report shall be 
submitted to tlie Division by each wastewater 
discharger or collectively by an Association, 
documenting the efforts/level of reductions achieved. 

(3) The collective total nitrogen load for all individually 
permitted wastewater discharges shall, on an armual 
mass basis, be no more than 2.8 million pounds per 
year, unless individual wastewater discharges 
separately or collectively purchase a ponion of the 
nonpoint source allocation in accordance with the 
formula for offset payments set fonh in 15A NCAC 
2B .0240. 

(4) Any existing individual discharger or collective 
group of wastewater dischargers that accepts 
wastewater from another wastewater treatment 
facility in the Neuse River Basin which results in the 
elimination of tlie discharge from that wastewater 
treatment facility shall be allowed to increase the 
annual mass load of total nitrogen discharged by the 
annual mass load of total nitrogen allocated to the 
wastewater treatment facility that is eliminated. If 
the wastewater treatment system that is to be 
eliminated has a permitted flow of less than 0.5 
MGD. the annual mass load of total nitrogen shall be 
calculated from the most recent available data on that 
facility. 

(5) All dischargers within the basin will have the option 
of forming an Association to meet their allocated 
total nitrogen load collectively. 

(a) For dischargers that join an Association, an 
agreement will be drafted between the 
Division and tlie Association that includes 
annual loading targets. Using each 

Association member's 1995 total nitrogen 
load, the annual loading target shall be 
calculated as 70 percent of the load from those 
discharges below the Falls Lake dam plus 10 
percent of the load from those dischargers 
above the dam. This aimual total nitrogen 
loadmg target shall be met within five years of 
the effective date of this Rule. The agreement 
ma\' also require stepwise decreases in total 
nitrogen loads for the five years following the 
effective date of this Rule. The Association 
shall also be required to document reduction 
in total nitrogen loadings for any member 
facilities located in Craven. Jones. Pamlico 
and Carteret Counties as a result of their 
immediate proximity to the estuar\' . If the 
Association does not meet its armual total 
nitrogen loading target in anv given year, the 
Association shall make payments for nonpoint 
source controls at a rate as set in 15A NCAC 
2B .0240 of this Section. No Association 



470 



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September 15, 1997 



12:6 



PROPOSED RULES 



I 



I 



I 



exists, for the purposes of this Rule, until the 
agreement is formally approved by the 
Commission. All existing Association 
dischargers below Falls Lake Dam that have a 
permitted flow greater than or equal to 0.5 
MGD will receive a quarterly average total 
phosphorus limit of 2 mg/1 in their NPDES 
permits. All existing Association dischargers 
above Falls Lake Dam that have a permitted 
flow greater than or equal to 0.05 MGD will 
receive a quarterlv average total phosphorus 
limit of 2 mg/1 in their NPDES permits. New 
and expanding Association dischargers will 
receive a quarterly average total phosphorus 
limit of 2 mg/1 in their NPDES permits. 
More stringent phosphorous limits may apply 
to protect water quality standards in localized 
areas. 
(h) For dischargers that do not join an 
Association, or if no Association of 
dischargers is formed, the following 
requirements apply: 

£i} All existing dischargers greater than or 
equal to 0^ MGD below Falls Lake 
Dam must individually meet an annual 
mass load of total nitrogen based on a 
concentration of 3^ mg/1 and their 
1995 permitted flow within five years 
from the effective date of this Rule. 
These facilities must meet a quarterly 
average total phosphorus limit of 2 
mg/1. More stringent limits may apply 
to protect water quality standards in 
localized areas, 
(ii) All existing facilities above Falls Lake 
Dam with permitted flows greater than 
or equal to 0.05 MGD will be required 
to meet a quarterly average total 
phosphorous limit of 2 mg/1. More 
stringent limits may apply to protect 
water quality standards in localized 
areas, 
(iii) All expanding wastewater dischargers, 
where discharge is tlie only 
enviroimientally and economically 
feasible option, must document their 
ability to comply with an annual mass 
load of total nitrogen based on a 
concentration of 3^ mg/1 and their 
1995 permitted flow. An expanding 
wastewater discharger may obtain 
allocation from the load established 
under Item (3) of this Rule from other 
existing dischargers. An expanding 
wastewater discharger which can not 
comply with the annual mass load or 
obtain an allocation from other existing 



dischargers' load. 



ly purchase a 
portion of the nonpoint source load 
allocation at a rate of 1 10 percent of the 
cost as set in 15 A NCAC 2B .0240 of 
this Section to implement practices 
designed to reduce that same loading 
created by the expanding discharge. 
Payment for the portion of the nonpoint 
source load allocation purchased shall 
be made prior to permit issuance. The 
expanding discharge shall at a 
minimum comply with an aimual mass 
load of total nitrogen based on a 
concentration of 3^ mg/1 and their 
expanded permitted flow. These 
facilities must meet a monthly average 
total phosphorous limit of 1 mg/1. 
More stringent limits may be given to 
protect water quality standards in 
localized areas. 

(iv) New municipal wastewater dischargers 
that develop a wastewater treatment 
system to resolve water quality 
problems caused by existing failing 
subsurface systems and that have no 
alternative other than to discharge, shall 
document efforts to obtain allocation 
from the load established in Item (3) of 
this Rule from existing wastewater 
dischargers. If allocation can not be 
obtained from the existing dischargers. 
the new municipal discharger may 
purchase a portion of the nonpoint 
source load allocation at a rate of 110 
percent of the cost as set in 15 A NCAC 
2B .0240 of this Section to implement 
practices designed to reduce that same 
loading created by the new discharge. 
Payment for the portion of the nonpoint 
source load allocation purchased shall 
be made prior to permit issuance. The 
new municipal discharger shall at a 
minimum comply with an aimual mass 
load of total nitrogen based on a 
concentration of 3^ mg/1 and their 
permitted flow. These facilities must 
meet a monthly average total 
phosphorous limit of i mg/1. More 
stringent limits may be given to protect 
water quality standards in localized 
areas. 

(v) All new wastewater dischargers shall 
document efforts to obtain allocation 
from the load established in Item (3) of 
this Rule from existing wastewater 
discharges. If allocation can not be 
obtained from the existing dischargers. 



72:5 



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September 15, 1997 



471 



PROPOSED RULES 



Authority G.S. 
215.3(a)(1). 



.0235 



new dischargers may purchase a portion 
of the nonpoint source load allocation 
at a rate of 200 percent of the cost as 
set in i5A NCAC 2B .0240 of this 
Section to implement practices designed 
to reduce that same loading created by 
the new discharge. Payment for the 
portion of the nonpoint source load 
allocation purchased shall be made 
prior to permit issuance. The new 
discharge shall at a minimum comply 
with art annual mass load of total 
nitrogen based on a concentration of 
3.5 mg/1 and their permitted flow. 
These facilities must meet a monthly 
average total phosphorous limit of i 
mg/1. More stringent limits may be 
given to protect water quality standards 
in localized areas. 

143-214.1; 143-215; 143-215.1; 143- 



NEUSE RTVER BASIN- NUTRIENT SENSITIVE 
WATERS MANAGEMENT STRATEGY: 
BASINWIDE STORMWATER 

REQUIREMENTS 

(a) The following local governments shall be designated, 
based on population, for stormwater management requirements 
as pan of the Neuse River Nutrient Sensitive Waters 
stormwater management strategy: 



Gary. 

Durham. 

Gamer. 

Goldsboro. 

Havelock. 

Kinston. 

New Bern. 

Raleigh. 

Smithfield. 

Wilson 

Durham County. 

Johnston County. 

Orange County. 

Wake County, and 

Wayne County, 
(b) Other incorporated areas, not listed under Paragraph (a) 
of this Rule, within affected counties may seek to implement 
their own local stormwater management plan by complying 



m 

121 

13} 

ill 

15} 

16} 

17} 

18} 

19} 

(10) 

111} 

02} 

(13) 

(14) 

115} 



with the requirements s{)ecified in Paragraphs (e). (f) and tg} of 
this Rule. 

(c) The Environmental Management Commission may 
designate additional local governments based on their potential 
to contribute significant nitrogen loads to the Neuse River. The 
Commission shall review the need to designate additional local 
governments, based on population growth or pollution 
potential. At a minimum, the Commission shall review the 



need for additional designations to the stormwater management 
program as part of the basinwide planning process for the 
Neuse River Basin. Any local governments that are designated 
at a later date under the Neuse Nutrient Sensitive Waters 
Stormwater Program shall meet the requirements under 
Paragraphs (e). <f) and (g) of this Rule. 

Id} Within 12 months of the effective date of this Rule, the 
Division of Water Ouality shall submit a model local 
stormwater management program plan to control nutrients to 
the Commission for approval. The Division will work in 
cooperation with subject local governments in developing this 
model plan. The model plan shall address nitrogen reductions 
for both existing and new development and include, but not be 
limited to. the following elements: 

(1) Review and approval of stormwater management 
plans for new developments to ensure that: 

(A) the nitrogen load contributed by new 
development activities is held at 2Q percent of 
the nitrogen load contributed by the 1995 land 
use. The local governments may use the 
design standard of Xl6 pounds/acre/year, 
determined by the Environmental Management 
Commission as 70 percent of the average 
collective nitrogen load for the 1995 non- 
urban land uses in the basin above New Bern. 
The EMC may periodically update the design 
standard based on the availability of new 
scientific information. Developers shall have 
the option of partially offsetting their nitrogen 
loads by funding wetland or riparian area 
restoration through the North Carolina 
Wetland Restoration Fund: however, before 
using offset payments, the development must 
attain, at a minimum, a nitrogen export that 
does not exceed 6 pounds/acre/year for 
residential development and 10 
potinds/acre/year for commercial or industrial 
development. 

(B) there is no net increase in peak flow from the 
predevelopment conditions for the 1-year. 24- 
hour storm: 

Review of new development plans for compliance 
with requirements for protecting and maintaining 
existing ripanan areas as specified in 15A NCAC 2B 
.0233: 

Implementation of public education programs: 
Identification and removal of illegal discharges: 
Identification of suitable locations for potential 
stormwater retrofits (such as riparian areas) that 
could be funded by various sources: and 
Annually report on net changes to nitrogen load from 
urban area, 
(e) Within 18 months of the effective date of this Rule or 
later designation [as described in Paragraph (c)l. subject local 
governments shall submit their local stormwater management 
program plans to tlie Commission for review and approval. 
These local plans shall equal or exceed the model local 



12} 



13} 
14} 
15} 



16} 



472 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



stormwater management program plan established in Paragraph 
(d) of this Rule. Local governments may submit a more 
stringent local stormwater management program plan. Local 
stormwater management programs and modifications to these 
programs shall be kept on fik by the Division of Water 
Oualitv. 

£fl Within 24 months of the effective date of the rule or 
designation, subject local governments are required to adopt 
and implement a local stormwater management program 
according to their approved plan. Local governments 
administering a stormwater management program are required 
to submit annual reports to the Division documenting their 
progress by November 30 of each year. 

(g) If a local government fails to submit an acceptable local 
stormwater management program plan or fails to properly 
implement an approved plan, then stormwater management 
requirements for existing and new urban areas within its 
jurisdiction will be administered through the NPDES municipal 
stormwater permitting program per 15A NCAC 2H .0126. 

(1) Subject local governments will be required to 
develop and implement comprehensive stormwater 
management programs, tailored toward nitrogen 
reduction, for both existing and new development. 

(2) These stormwater management programs shall 
include, but not be limited to. the following 
elements: 

(A) Review and a pproval of stormwater 
management plans for new developments to 
ensure that: 

£i} die nitrogen load contributed by new 
development activities is held at 70 
percent of the nitrogen load contributed 
by the 1995 land use. The local 
governments may use the design 
standard of 3^ pounds/acre/year, 
determined by the Environmental 
Management Commission as the 
average collective nitrogen load for the 
1995 non-urban land uses in the basin 
above New Bern. The EMC may 
periodically update the design standard 
as based on die availability of scientific 
information. Developers shall have the 
option of partiallv offsetting their 
nitrogen load by funding wetland or 
riparian area restoration through the 
North Carolina Wetland Restoration 
Fund: however, before using offset 
payments, the development must attain. 
at a minimum, a nitrogen export that 
does not exceed 6 pounds/acre/year for 
residential development and 10 
pounds/acre/year for commercial 
development, 
(ii) there is no net increase in peak flow 
from the predevelopment conditions for 
the 1-year. 24-hour storm. 



m 






im 



Review new development plans for 
compliance with requirements for protecting 
and maintaining existing riparian areas as 
specified in 15A NCAC 2B .0233: 
Implementation of public education programs: 
Identification and removal illegal discharges: 
Identification of suitable locations for 
potential stormwater retrofits (such as riparian 
areas) that could be funded by various 
sources: and 

Annually report on changes to net nitrogen 
load from urban area. 



Authority G.S. 143-214.1; 143-214.7; 143-215.1; 143- 

215.3(a)(1). 

.0236 NEUSE RTVER BASIN- NUTRIENT SENSITIVE 
WATERS MANAGEMENT STRATEGY: 
AGRICULTURAL NITROGEN LOADING 
REDUCTION 

All persons engaging in agricultural operations in the Neuse 
River Basin, including those related to crops, livestock, and 
poultry, shall achieve a 30 percent net total nitrogen loading 
reduction from the cumulative average 1991-1995 nitrogen 
loadings. Such reduction shall be equivalent to a net total 
nitrogen loading reduction of 1.695.000 pounds per year to the 
Neuse River Estuary upstream New Bern (based on the 1991- 
1995 average nitrogen loadings). In addition to requirements 
set forth in general permits for animal operations issued 
pursuant to G.S. 143-215. IOC, these Rules apply to all 
livestock and poultry operations, regardless of size, in the 
Neuse River Basin. A management strategy to achieve this 
reduction is specified in Rule .0238 of this Section. 

Authority G.S. 143-214.1; 143-214.7; 143-215. 3(a)(1). 

.0238 NEUSE RTVER BASIN- NUTRIENT SENSITIVE 
WATERS MANAGEMENT STRATEGY: 
AGRICULTURAL NITROGEN REDUCTION 
STRATEGY 

The following requirements apply to all persons in the Neuse 
River Basin who engage in agricultural operations. 
Agricultural operations are activities which relate to the 
production of crops, livestock, and poultry. 

(1) The nitrogen net loading reduction specified in Rule 
.0236 of tliis Section shall be achieved collectively 
by all persons engaging in agricultural operations 
within five years from the effective date of this Rule. 
Persons subject to this Rule are provided with two 
options for meeting the requirements of this Rule. 
The first option is to sign-up for and participate in 
implementing a collective county plan for 
agricultural nitrogen reduction as described in Item 
(7) of this Rule. This option allows site-specific 
plans to be developed for those operations where 
further nitrogen reduction practices are necessary to 
achieve the collective reduction goal. The second 



12:6 



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September 15, 1997 



473 



PROPOSED RULES 



option requires the implementation of standard Best 
Management Practices as specified in Item (8) of this 
Rule. Failure to meet reqmrements of this Rule may 
result in imposition of enforcement measures as 
authorized by G.S. 143-215. 6A (civil penalties). 
G.S. 143-215. 6B (criminal penalties), and G.S. 143- 
215.6C (injunctive relief). 

(2) Formation and membership of the Basin Oversight 
Committee. The Environmental Management 
Commission shall delegate to the Directors of the 
Division of Water Oualitv and Division of Soil and 
Water Conservation the responsibilitv of forming a 
Basin Oversight Committee. 

(a) The Directors shall solicit one nomination for 
membership on this Committee from each of 
the following agencies: 

(U Division of Soil and Water 

Conservation, 
(ii) United States Department of 
Agriculture- Natural Resources 
Conservation Service, 
(iii) North Carolina Department of 

Agriculture, 
(iv) North Carolina Cooperative Extension 

Service, and 
(v) Division of Water Oualitv. 

(b) The Directors shall also solicit one nomination 
that represents environmental interests, one 
nomination that represents agricultural 
interests, and one from the scientific 
community. 

(c) Nominations for Basin Oversight Committee 
shall be approved by the Secretary. 
Department of Environment. Health and 
Natural Resources. Members shall be 
appointed for a term not to exceed five years 
and shall serve at the pleasure of the 
Secretary. 

(3) Role of the Basin Oversight Committee. The 
Environmental Management Commission shall 
delegate the following responsibilities to qualified 
emplovees of the Department who are members of 
the Basin Oversight Committee and employees of the 
Division of Water Quality and Division of Soil and 
Water Conservation. These qualified employees 
shall act with advice from the Basin Oversight 
Committee. 

(a) Develop a tracking and accounting 
methodologv. as described below, for 
evaluating total nitrogen loading from 
agricultural operations and progress toward 
reaching the total nitrogen net loading 
reduction from the implementation BMPs 
within the Neuse River Basin above New 
Bern. The accountability methodology must 
demonstrate how the nitrogen loading 
reduction can be met collectively by 



implementing best management practices 
approved by the Soil and Water Conservation 
Commission above New Bern that include, but 
are not limited to. water control structures, 
riparian area establishment, and nutrient 
management. 

(b) Submit the accountability process to the 
Environmental Management Commission for 
approval within one year after the effective 
date of the rule. 

(c) Include in the accountability process a method 
to accurately track implementation of BMPs. 
including location and type of BMPs: to 
estimate nitrogen reductions from BMP 
implementation: to quantify increases or 
decreases in nitrogen loading due to changes 
in land use, modified agricultural activitv. or 
atmospheric nitrogen loading, based on the 
best available scientific information: to ensure 
operation and maintenance of BMPs. 
including year round management for water 
control structures: to address life expectancy 
of BMPs: and a method to ensure maintenance 
of the nitrogen net loading reduction after the 
initial five years of this Rule, including 
substitute BMPs to replace expired practices 
and additional BMPs to offset new sources of 
nitrogen. 

(d) Allocate to counties within the Neuse River 
Basin above New Bern their portion of the 
nitrogen loading reduction from agricultural 
operations, including any division of the 
reduction between specific categories of 
agricultural operations. Each county may not 
have to reduce individually its nitrogen 
loading by 30 percent: however, the nitrogen 
loading reduction from all counties should 
collectively meet the total nitrogen reduction. 

(e) Review, approve and summarize county 
nitrogen reduction plans and present these 
plans to the Environmental Management 
Commission for approval within two years 
from the effective date of this Rule. 

(f) Review, approve and summarize county 
nitrogen reduction aimual reports and present 
these reports to the Environmental 
Management Commission each October. 
Information to be included in the Annual 
Report is described in Sub-item (5)(d) of this 
Rule. 

(4) Formation and membership of the County Advisory 
Committees. The Environmental Management 
Commission shall delegate to the Directors of the 
Division of Water Ouality and Division of Soil and 
Water Conservation the responsibility of forming 
County Advisory Committees, 
(a) The Directors shall form County Advisory 



474 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



► 



> 



I 



Committees in each within the Neuse River 
Basin. The Directors shall solicit nominations 
for membership on the County Advisory 
Committee from each of the following local 
agencies: 

£i} Soil and Water Conservation District, 
(ii) United States Department of 

Agriculture- Natural Resources 

Conservation Service, 
(iii) North Carolina Department of 

Agriculture, and 
(iv) North Carolina Cooperative Extension 

Service. 

(b) The Directors shall also solicit one nomination 
that represents a local farmer in the county. 

(c) Nominations for the County Advisory 
Committees shall be approved by the Directors 
and shall be appointed for a term not to exceed 
five years and shall serve at the pleasure of the 
Directors. 

(5) Role of the County Advisory Committees. The 
Environmental Management Commission shall 
delegate the following responsibilities to qualified 
employees of the Department who are members of 
the County Advisory Committees and employees of 
the Division of Soil and Water Conservation. These 
qualified employees shall act with advice from the 
County Advisory Committees. 

(a) Conduct a sign-up process for persons wishing 
to voluntarily implement the county nitrogen 
reduction plan as specified in Item (7) of this 
Rule. This sign-up process shall be completed 
within one year following the effective date of 
this Rule. 

(b) Develop county nitrogen reduction plans that 
meet the nitrogen loading reduction goal for 
agricultural operations assigned by the 
Directors with advice from the Basin 
Oversight Committee. The county plans shall 
be designed to achieve the required nitrogen 
loading reduction within five years from the 
effective date of this Rule. A matrix of best 
management practice options, which account 
for stream order, floodplain width, and 
regional variations in soil types and 
topography, may be used in developing the 
county nitrogen reduction plans. County 
nitrogen reduction plans must specify the 
name and location of participant agricultural 
farming operations. BMPs which will be 
required as part of the plan, estimated nitrogen 
reduction, schedule for BMP implementation. 
and operation and maintenance requirements. 

fc) Submit an annual report to the Basin 
Oversight Committee each May on net total 
nitrogen loading reductions from agricultural 
operations, the implementation of BMPs for 



nitrogen control, and pro gress towards the 
total nitrogen loading reduction requirement 
above New Bern, 
(d) Include in the annual report, at a minimum, 
documentation on the BMPs implemented 
(including type and location), their costs, 
documentation of anj^ expired contracts for 
BMPs. estimated nitrogen net loading 
reductions achieved as a result of those BMPs. 
any increases or decreases in nitrogen loading 
resulting from changes in land use or modified 
agricultural-related activity, discussion of 
operation and maintenance of BMPs. and a 
summary of the estimated load from 
agricultural operations for the previous year. 
and any modifications to the accounting 
methodology. Information shall be provided 
in the annual report on the status of BMP 
implementation by each participant in the 
county nitrogen reduction plan. Information 
shall include all agricultural operations within 
the Neuse River Basin in each county and 
shall also be summarized separately for 
cropland, livestock and poultry activities. The 
annual report following the fourth year after 
the effective date of this Rule shall include 
documentation of the implementation status of 
best management practices specified in Item 
(8) of this Rule. The Environmental 
Management Commission shall use the annual 
reports to determine the need for adjustments 
to the nitrogen reduction strategy for 
agricultural operations. 

(6) Options for meeting the collective total nitrogen net 
loading reduction requirement. Each agricultural 
operation in the Neuse River Basin shall have two 
options for meeting the requirements of tliis Rule. 
The options are to either implement a county 
nitrogen reduction plan, specified by Item (7) of this 
Rule, or implement standard Best Management 
Practices specified by Item (8) of this Rule. 

(7) County nitrogen reduction plan option. All persons 
subject to this Rule that choose to implement the 
county nitrogen reduction plan must complete the 
sign-up process that will be conducted per the 
requirements of Sub-item (5)(a) of this Rule. This 
sign-up process will be completed within one year 
from the effective date of tliis Rule. If a person 
subject to this Rule does not complete the sign-up 
process, he shall be subject to implementation of Best 
Management Practices as specified in Item (8) of this 
Rule. Persons who choose to participate in the 
county nitrogen reduction plan must implement his 
portion of the plan within five years of the effective 
date of this Rule. 

(8) Standard best management practice option. If a 
person subject to this Rule does not complete the 



12:6 



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September 15, 1997 



475 



PROPOSED RULES 



sign-up process for implementation of the county 
nitrogen reduction plan, then he shall implement the 
following best management practices within four 
years following the effective date of this Rule. A 
forested riparian area, as described in Sub-Item (8)(a) 
2f this Rule, is required on ah sides of surface waters 
in the Neuse River Basin (intermittent streams, 
perennial streams, lakes, and estuaries) as indicated 
on the most recent versions of U.S.G.S. 1:24.000 
scale (7.5 minute quadrangle) topographic maps or 
other site-specific evidence. Design and installation 
Qf the forested riparian area should be such that, to 
the maximum extent possible, sheet flow of surface 
water is achieved. Any activities that would result in 
water quality standard violations or disrupt the 
structural or functional integrity of the forested 
riparian area are prohibited. 

(a) The protected riparian area shall have two 
zones as follows: 

Iji Zone 1 is intended to be undisturbed 
forest. Zone 1 begins at the centerline 
of the channel for intermittent streams 
and perermial streams without 
tributaries and extends landward a 
distance of 30 feet on each side of the 
waterbody. measured horizontally on a 
line perpendicular to the waterbody. 
For all other waterbodies. Zone i 
begins at the upper edge of the active 
channel of the surface waterbody (bank- 
full flow) or the mean high water line 
and extends landward a distance of 30 
feet, measured horizontally on a line 
peipendicular to the waterbody. Forest 
vegetation of any width that exists in 
Zone i on the effective date of this 
Rule must be preserved and maintained 
in accordance with Sub-Items (A)-(F) 
of this Rule. The application of 
fertilizer in Zone 1 is prohibited. The 
following practices and activities are 
allowed in Zone li 

(A) Natural regeneration of forest 
vegetation is allowed and 
planting vegetation to enhance 
the riparian zone is allowed if 
disturbance is minimized. Any 
plantings should primarily 
consist of locally native trees 
and shrubs: 

(B) Selective removal of individual 
high value trees is allowed 
where water quality values are 
not compromised. Limited 
mechanized equipment is 
allowed in this area: 

(C) Horticulture practices may be 



im 



used to maintain the health of 
individual trees: 

(D) Individual trees may be removed 
which are in danger of causing 
damage to dwellings, other 
structures, or the stream 
channel: 

(E) Other timber cutting techniques 
approved by the Department 
may be undertaken if necessary 
to prevent extensive pest or 
disease infestation: and 

£F} For activities where no practical 
alternative to clearing existing 
forest vegetation exists. 300 feet 
of herbaceous vegetation on each 
side of the waterbody where 
nutrients are not applied may be 
substituted in lieu of Zone L. 
Zone 2j. begins at tlie outer edge of 
Zone 1 and extends landward a 
minimum of 20 fget as measured 
horizontally on a line perpendicular to 
the waterbody. The combined 

minimum width of Zones 1 and 2 shall 
be 50 feet on all sides of the 
waterbody. Ve getation in Zone 2 shall 
consist of a dense ground cover 
composed of herbaceous or woody 
species which provides for diffusion 
and infiltration of runoff and filtering 
of pollutants. The following practices 
and activities are allowed in Zone 2 in 
addition to those allowed in Zone Jj. 
Removal of grass clippings or plant 
products such as timber, nuts, and fruit 
is allowed on a periodic and regular 
basis provided the intended purpose of 
the riparian area is not compromised by 
harvesting, disturbance, or loss of 
forest or herbaceous ground cover. 
Forest vegetation in Zone 2 may be 
managed to minimize shading on 
adjacent land if tlie water quality 
function of die riparian area is not 
compromised. The following practices 
and activities are not allowed in Zone 
2; 

(A) New permanent structures: 

(B) New on-site sanitary sewage 
systems which use ground 
absorptions: 

(C) Activities that would result in 
water quality standards 
violations or disrupt the 
structural or functional integrity 
of die riparian area are 



476 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



► 



) 



prohibited. 

(iii) Timber removal and skidding of trees 
in the riparian area shall be directed 
away from the water course or water 
body. Skidding shall be done in a 
manner to prevent creation of 
ephemeral channels perpendicular to the 
water bodv. Any tree removal must be 
performed in a maimer that does not 
compromise the intended purpose of the 
riparian area and is in accordance with 
the Forest Practices Guidelines Related 
to Water Quality (15A NCAC U 
■0201 -.0209). 
(b) The following waterbodies and land uses are 

exempt from the riparian area requirement: 
£l1 Ditches and manmade conveyances, 
other than modified natural streams 
which under normal conditions do not 
receive drainage waters from any 
tributary ditches, canals, or streams, 
unless the ditch or manmade 
conveyance delivers runoff directly to 
waters classified in accordance with 
15A NCAC 2B .0100: 

(ii) Ditches and manmade convevances 
other than modified natural streams 
which are used exclusively for drainage 
of silvicultural land or naturallv 
forested areas. All forest harvesting 
operations shall be in compliance with 
North Carolina's Forest Practices 
Guidelines Related to Water Quality: 

(iii) Areas mapped as perennial streams, 
intermittent streams. lakes, or estuaries 
on the most recent versions of United 
States Geological Survey 1:24.000 
scale (7.5 minute quadrangle) 
topographic maps where no perennial 
or intermittent waterbody exists on the 
ground: 

(iv) Ponds and lakes created for animal 
watering. irrigation. or other 
agricultural uses that are not part of a 
natural drainage way that is classified 
in accordance with 15A NCAC 2B 
■0100: 

(y) Canals, ditches, and other drainage 
conveyances are exempt from the 
riparian area requirement if both water 
control structures with a water 
management plan and a nutrient 
management plan, as specified in 15A 
NCAC 2B .0239. are implemented on 
the adjacent agricultural land according 
to the standards and specifications of 
the USDA - Natural Resources 



isl 



Conservation Service or the standards 
and specifications adopted by the NC 
Soil and Water Conservation 
Commission. The water control 
structures and nutrient management 
practices must provide equivalent 
protection and directly affect the land 
and waterbodies draining into the 
waterbody exempted from the riparian 
area requirement. To the maximum 
extent practical. water control 
structures should be managed to 
maximize nitrogen removal throughout 
the year. A technical specialist 
designated pursuant to rules adopted by 
the Soil and Water Conservation 
Commission must provide written 
approval that the nutrient management 
and water management plans meet the 
standards and specifications of the 
USDA ; Natural Resources 
Conservation Service or the standards 
and specifications adopted by the NC 
Soil and Water Conservation 
Commission. If the nutrient 

management plans and water 
management plans are not 
implemented, then a riparian area 
pursuant to this Section is required: 

(vi) Roads. bridges. stormwater 

management facilities, ponds, and 
utilities may be allowed where no 
practical alternative exists. These 
structures shall be located, designed, 
constructed, and maintained to have 
minimal disturbance, to provide 
maximum nutrient removal and erosion 
protection, to have the least adverse 
effects on aquatic life and habitat, and 
to protect water quality to the 
maximum extent practical through the 
use of best management practices: 
(vii) Stream restoration projects, scientific 
studies, stream gauging, water wells, 
passive recreation facilities such as 
boardwalks, trails, pathways, historic 
preservation and archaeological 
activities are allowed: and 
(viii) Stream crossings associated with timber 
harvesting are allowed if performed in 
accordance with the Forest Practices 
Guidelines Related to Water Quality 
(15A NCAC IJ .0201-^0209). 

The following are modifications to the riparian 

area requirements^ 

(i) On agricultural land where either water 
control structures with a water 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



477 



PROPOSED RULES 



m 



management plan, or a nutrient 

management plan is implemented 

according to the standards and 

specifications of the USDA z. Natural 

Resources Conservation Service or the 

standards and specifications adopted by 

the NC Soil and Water Conservation 

Commission, then a 20-ft forested or a 

30-ft vegetated buffer is required. The 

water control structures or nutrient 

management practices must provide 

equivalent protection and directly affect 

the land and waterbodies draining into 

the waterbody with a modified buffer 

requirement. To the maximum extent 

practical, water control structures 

should be managed to maximize 

nitrogen removal throughout the year. 

A technical specialist designated 

pursuant to rules adopted by the Soil 

and Water Conservation Commission 

must provide written approval that the 

nutrient management plan meets the 

standards and specifications of the 

USDA ; Natural Resources 

Conservation Service or the standards 

and specifications adopted by the NC 

Soil and Water Conservation 

Commission. 

(ii) A vegetated riparian area may be 

substituted for an equivalent width of 

forested riparian area within 100 feet of 

tile drainage. 

(iii) Where the riparian area requirements 

would result in an unavoidable loss of 

tobacco allotments [17 CFR 

723.220(01 and tlie BMPs of controlled 

drainage or nutrient management are 

not in place, forest cover is required 

only in the first 20 feet of the riparian 

area. 

Maintenance of the riparian area is required. 

Sheet flow must be maintained to the 

maximum extent practical through dispersing 

concentrated flow and/or re-establishment of 

vegetation to maintain the effectiveness of the 

riparian area. Periodic corrective action to 

restore sheet flow must be taken by the 

landowner if necessary to impede the 

formation of erosion gullies which allow 

concentrated flow to bypass treatment in the 

riparian area. Periodic maintenance of 

drainage channels, canals, and ditches is 

allowed provided that disturbance is 

minimized and tlie structure and function of 

the riparian area is not compromised. A 

grassed travelway is allowed on one side of 



the waterbody when alternative forms of 
maintenance access are not practical. The 
width and specifications of the travelway shall 
be only that needed for equipment access and 
operation. The travelway should be located to 
maximize stream shading, 
(e) Where the standards and management 
requirements for riparian areas are in conflict 
with other laws, regulations, and permits 
regarding streams, steep slopes, erodible soils, 
wetlands, floodplains. forest harvesting, 
surface mining, land disturbance activities, 
development in Coastal Area Management Act 
Areas of Enviroimiental Concern, or other 
environmental protection areas, the more 
protective shall apply so long as they are in 
effect. 

Authority G.S. 143-214.1; 143-214.7; 143-215. 3(a)(1). 

.0239 NEUSE RIVER BASIN: NUTRIENT 

SENSITIVE WATERS MANAGEMENT 
STRATEGY: NUTRIENT MANAGEMENT 

The following is tlie management strategy for nutrient 
management in the Neuse River Basin: 

(1) The following persons are required to obtain a 
certificate, issued within five vears of the effective 
date of this Rule by the Cooperative Extension 
Service or tlie Division of Water Quality, verifying 
completion of training and continuing education in 
nutrient management. Within one year from the 
effective date of this Rule, the Division of Water 
Quality, in cooperation with the Cooperative 
Extension Service, shall conduct a sign-up process 
for persons wishing to take the nutrient management 
training. If these persons fail to obtain the nutrient 
management certificate, they are required to develop 
and properly implement nutrient management plans 
for the lands where they apply fertilizer within five 
years of the effective date of this Rule: 

(a) Applicators who in a calendar year apply 
fertilizer to cropland areas that together 
comprise at least 50 acres: 

£bj Applicators who in a calendar year apply 
fertilizer to a golf course, recreational land 
areas, right-of-way, or other turfgrass areas 
that together comprise at least 50 acres: and 

(c) Commercial applicators who apply fertilizer to 
at least 50 total acres per year of lawn and 
garden areas in residential, commercial, or 
industrial developments. 

(2) If the persons listed in Sub-items (l)(a)-(c) of this 
Rule do not attend and complete within five vears of 
the effective date of this Rule a nutrient management 
training program administered by the Cooperative 
Extension Service, their nutrient management plans 
shall meet the following requirements: 



478 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



PROPOSED RULES 



) 



) 



m 



(4} 



I 



£5} 



(a) Nutrient management plans for cropland shall 
meet the standards and specifications of the 
USDA - Natural Resources Conservation 
Service or the standards and specifications 
adopted by the NC Soil and Water 
Conservation Commission. Written approval 
from a technical specialist designated pursuant 
to rules adopted by the Soil and Water 
Conservation Commission must be obtained 
by the applicator certifying that a nutrient 
management plan meeting these standards has 
been developed for the lands where they apply 
fertilizer. 

(b) Nutrient management plans for turf grass. 
horticultural, and non-agricultural application 
of nutrients shall meet the standards and 
specifications of the Division of Water 
Quality. These standards and specifications 
shall be developed by the Division of Water 
Quality in consultation with the Cooperative 
Extension Service, the Natural Resources 
Conservation Service, the Division of Soil and 
Water Conservation, and the North Carolina 
Department of Agriculture and approved by 
the Director of the Division of Water Quality 
within one year of the effective date of this 
Rule. Written approval from a technical 
specialist designated pursuant to rules adopted 
by the Soil and Water Conservation 
Commission must be obtained by the 
applicator certifying that a nutrient 
managemen t plan meeting these standards has 
been developed for the lands where they apply 
fertilizer. 

(c) Nutrient management plans and supporting 
documents must be kept on-site or be 
producible within 24 hours of a request by the 
Division of Water Quality. 

(d) Nutrient management plans inav be written by 
the applicator or a consultant to the applicator. 

Applicators and commercial applicators subject to 
Item (2> of this Rule who do not develop a nutrient 
management plan or do not apply nutrients in 
accordance with a nutrient management plan meeting 
the specifications in Item (2) of tliis Rule are in 
violation of this Rule and are subject to enforcement 
measures authorized in G.S. 143-215. 6A (civil 
penalties). G.S. 143-2 15. 6B (criminal penalties), and 
G.S. 143-215. 6C (injunctive relief). 
Dry poultry litter from animal waste management 
systems involving 30.000 or more birds shall be 
a pplied at agronomic rates for nitrogen based on 
realistic yield expectations derived from waste 
nutrient content, crop, and soil type or yield records. 
Residential landowners and other individuals 
applying fertilizer to less than 50 acres per year 
should to tlie maximum extent practical apply 



fertilizer to residential, commercial, industrial, 
turfgrass. and cropland areas at rates recommended 
by the Cooperative Extension Service. 

AuthoriTy G.S. 143-214.1; 143-214.7: 143-215. 3(a)(1). 

.0240 NEUSE RTVER BASIN- NUTRIENT SENSITIVE 
WATERS MANAGEMENT STRATEGY: 
NUTRIENT OFFSET PAYMENTS 

Nutrient offset payments made as part of fulfilling 
requirements of the Nutrient Sensitive Waters Management 
Strategy shall be paid to either of the following programs for 
implementation of measures to reduce nitrogen delivery to the 
Neuse River. These programs include: 

(1) North Carolina Agriculture Cost Share Program for 
Nonfxjint Sources. Monies paid to this fund shall be 
targeted toward implementing agricultural Best 
Management Practices for nitrogen reduction within 
the Neuse River Basin. 
North Carolina Wetland Restoration Fund. Monies 



ill 



paid to this fund shall be targeted toward restoration 
of riparian areas along surface waters within the 
Neuse River Basin. A cost effectiveness rate shall be 
established by the Division that represents the cost to 
achieve a reduction of one kilogram or one pound of 
total nitrogen through the use of nitrogen reduction 
measures. The rate shall be periodically updated by 
the Division based on tlie availability of new cost or 
effectiveness data. The rate shall be: 

(a) twentv-nine dollars per kilogram ($29.00/kg) 
or thirteen dollars per pound ($13.00/lb) for 
the North Carolina Agriculture Cost Share 
Program for Nonpoint Sources, and 

(b) twenty-three dollars per kilogram ($23.00/kg) 
or eleven dollars p er pound ($11 .00/lb) for the 
North Carolina Wetland Restoration Fund. 



Authority G.S. 143-214.1. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Board of Nursing intends to adopt 
rules cited as 21 NCAC 36 .0601 - .0606. Notice of Rule- 
making Proceedings was published in the Register on July 1, 
1997. 

Proposed Effective Date: August 1, 1998 

A Public Hearing will be conducted at 1:00 p.m. on January 
22, 1998 at the Embassy Suites Hotel. 4700 Creedmoor Road, 
Raleigh. NC 27612. 

Reason for Proposed Action: To facilitate the process for a 
registered nurse to form a limited liability company as 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



479 



PROPOSED RULES 



organized under G.S. 57C-2-01. 



Comment Procedures: Any person wishing to present oral 
testimony relevant to proposed rules may register at the door 
before the hearing begins and present the hearing officer with 
a copy of testimony. Written comments concerning this 
adoption must be submitted by Friday. January 16, 1998 to: 
North Carolina Board of Nursing. PO Box 2129. Raleigh. NC 
27602-2129; Attn: Jean H. Stanley. APA Coordinator. 



(b) A certification that each of those organizing members 
who may provide nursing and related services as specified in 
G.S. 55B-14(c)(2). (4-6) is licensed to practice nursing in 
North Carolina shall be returned to limited liability company 
for filing with the Secretary of State. 

Authority G.S. 55B-4; 55B-10; 55B-12; 55B-14; 57C-2-01. 



Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
not have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 12-month period. 

CHAPTER 36 - BOARD OF NURSING 

SECTION .0600 - ARTICLES OF ORGANIZATION 



.0603 CERTIFICATE OF REGISTRATION 

A Certificate of Registration for a Limited Liability 
Company shall remain effective until December 3 1 of the year 
in which is was issued unless suspended or terminated as 
provided by law. A Certificate of Registration shall be 
renewed aimuallv on application forms supplied by the Board. 
The application shall be accompanied by a renewal fee as set by 
Rule .0606 of this Subchapter. 



.0601 NAME OF LIMITED LIABILITY COMPANY 

The name of a limited liability companv for the purpose of 
providing nursing and related services shall not include mx 
adjectives or other words not in accordance with ethical 
customs of the nursing profession. 

Authority G.S. 55B: 57C-2-01. 

.0602 PREREQUISITES FOR ORGANIZATION 

(a) Before filing the articles of organization for a limited 
liability companv with the Secretary of State, the organizing 
members shall submit the following to the Board: 

(1) a registration fee as set by Rule .0606 of this 

Subchapter: and 
£2} a certificate certified by those registered nurse 
organizing members, setting forth the names, 
addresses, social security and license numbers of 
each person who will be employed by the limited 
liabilitv company to practice nursing and related 
services as specified in G.S. 55B-14(c)(2). (4-6). and 
stating that all such persons are duly licensed to 
practice nursing in North Carolina, and representing 
that the company will be conducted in compliance 
with the General Statutes of North Carolina Articles 
of Organization and this Subchapter. 



Authority G.S. 55B-10; 55B-11; 57C-2-01. 

.0604 GENERAL AND ADMINISTRATIVE 
PROVISIONS 

The Board shall issue the certificate authorizing transfer of 
membership when membership is transferred in the company. 
This transfer form shall be permanently retained by the 
company. The membership books of the company shall be kept 
at tlie principal office of the company and shall be subject to 
inspection by authorized a gents of the Board. 

Authority G.S. 55B-6; 55B-12; 57C-2-01. 

.0605 DOCUMENTS 

The forms and documents re garding limited liability 
companies are issued by the Board. 

Authority G.S. 150B-11. 

.0606 FEES 

The initial registration fee for a Limited Liability Company 
is fifty dollars ($50.00). The fee for renewal of a Certificate of 
Registration is twenty-five dollars ($25.00). 

Authority G.S. 55B-10; 55B-11; 57C-2-01. 



480 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



TEMPORARY RULES 



The Codifier of Rules has entered the following temporary rule(s) in the North Carolina Administrative Code. Pursuant to 
G.S. 150B-21.1(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making 
proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HUMAN RESOURCES 

Rule-making Agency: Division of Facility Services 

Rule Citation: 10 NCAC 3R .3053, .3060 - .3066. .3072 

Effective Date: September 1, 1997 

Findings Reviewed and Approved by: Beecher R. Gray 

Authority for the rule-making: G.S. 131E-176(25); 131E-177(1); 131E-183(b) 

Reason for Proposed Action: To incorporate amendments to the 1997 State Medical Facilities Plan which the Governor signed 
on July 23. 1997. 

Comment Procedures: Written comments should be sent to Jackie Sheppard at the Division of Facility Services, PO Box 29530, 
Raleigh. NC 27626-0530. Telephone (919) 733-2342. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3R - CERTinCATE OF NEED REGULATIONS 

SECTION .3000 - PLANNING POLICIES AND NEED DETERMINATIONS 

.3053 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following review schedules for certificate of need applications. 
(1) Nursing Care Beds (in accordance with need determinations in 10 NCAC 3R .3072) 





CON Beginning 


County 


Review Date 


Alexander 


April 1, 1997 


Burke 


February 1, 1997 


Cherokee 


October 1, 1997 


Cleveland 


April 1, 1997 


Haywood 


April 1, 1997 


Jackson 


October 1, 1997 


Macon 


October 1, 1997 


Transylvania 


April 1, 1997 


Yancey 


February 1, 1997 


Davidson 


October 1, 1997 


Surry 


August 1, 1997 


Yadkin 


August 1, 1997 


Iredell 


April 1, 1997 


Lincoln 


April 1, 1997 


Union 


August 1, 1997 


Granville 


May 1, 1997 


Johnston 


March 1, 1997 


Lee 


May 1, 1997 


Wake 


December 1, 1997 


Brunswick 


September 1, 1997 




December 1 , it?t7 



12:6 NORTH CAROLINA REGISTER September 15, 1997 481 



TEMPORARY RULES 



Harnett 


March 1, 1997 


Hoke 


March 1, 1997 


Moore 


May 1, 1997 


New Hanover 


September 1, 1997 


Currituck 


December 1, 1997 


Greene 


September 1, 1997 


Lenoir 


May 1, 1997 


Nash 


September 1, 1997 



(2) Home Health Agency Offices (in accordance with need determinations in 10 NCAC 3R .3074) 





CON Beginning 


HSA 


Review Date 


I 


December 1, 1997 


II 


April 1, 1997 


III 


June 1, 1997 


IV 


November 1, 1997 


V 


March 1, 1997 


VI 


July 1, 1997 



(3) Detox-Only Beds (in accordance with need determinations in 10 NCAC 3R .3078) 



Mental Health Planning Areas 



CON Beginning 
Review Date 



I (Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain) 

4 (Henderson, Transylvania) 

5 (Alexander, Burke, Caldwell, McDowell) 

6 (Rutherford, Polk) 
8 (Gaston, Lincoln) 

II (Davie, Iredell, Rowan) 
13 (Surry, Yadkin) 

15 (Rockingham) 

17 (Alamance, Caswell) 

18 (Orange, Person, Chatham) 

20 (Vance, Granville, Franklin, Warren) 

21 (Davidson) 

23 (Bladen, Columbus, Robeson, Scotland) 

26 (Johnston) 

27 (Wake) 

31 (Wayne) 

32 (Wilson, Greene) 

33 (Edgecombe, Nash) 

34 (Halifax) 

35 (Carteret, Craven, Jones, Pamlico) 

36 (Lenoir) 

38 (Bertie, Gates, Henford, Northampton) 

39 (Beaufon, Hyde, Martin, Tyrrell, Washington) 

40 (Camden, Chowan, Currituck, Dare, Pasquotank, Perquimans) 

41 (Duplin, Sampson) 



April 1, 1997 
April 1, 1997 
April 1, 1997 
April 1, 1997 
April 1, 1997 
April 1, 1997 
June 1, 



June 1 
June 1 
June 1 
June 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 
May 1 



1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 
1997 



(4) Intermediate Care Facility Beds for Mentally Retarded (in accordance with need determinations in 10 NCAC 3R .3079) 



Mental Health Plannine Areas 



CON Beginning 
Review Date 



482 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



TEMPORARY RULES 



3 (Alleghany, Ashe, Avery, Watauga, Wilkes) 


December 1, 1997 


14 (Forsyth, Stokes) 


December 1, 1997 


21 (Davidson) 


June 1, 1997 


16 (Guilford) 


Junel, 1997 


18 (Orange, Person, Chatham) 


November 1, 1997 


24 (Cumberland) 


May 1, 1997 


30 (Onslow) 


May 1, 1997 


37 (Pitt) 


May 1, 1997 



(5) Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another schedule 
has been specified in Items (1) through (4) of this Rule. 





CON Beginning 


HSA 






HSA 




Review Date 


I, II, III 






IV, V, VI 




January 1 


„ 











February 1 


A, B, G, I 






G 




March 1 


-- 






A, B, F, I 




April 1 


B, F, H, I 






-- 




May 1 


-- 






B, C, H, I 




June 1 


A, C, D, F 


I 




D 




July 1 


- 






A, F, I 




August I 
September 1 
October 1 
November 1 


B, E, I 






n T7 T T> T7 T I¥ 






B.L 


H 


o, L, 1 U. Li. 1. 11 




A, U, 1 Aj, 












A, l„, i', 1 A. C 1'. 1. 11 




December 1 


C, D, F, H 


I 




B, D, H, I 



History Note: Authority G.S. 131E-I76(25); 131E-177(1): 131E-183(b); 
Temporary Adoption Eff. January 2, 1997; 
Temporary Amendment Eff. January 15, 1997; 
Temporary Ameruiment Eff. September 1. 1997. 

.3060 OPEN HEART SURGERY SERVICES NEED DETERMINATIONS (REVIEW CATEGORY H) 

Because ove r 9 5% of all of t he citizens o f N or th Car o lina live wi t hin 45 miles of o nt o r m o re open hear t surg er y se r vices; 
because the prep o nderance o f clinical researoh on o pen heart surgery services indicates tha t there is a p o sitive rela t ionship be t ween 
the numb er of pro c e du r es performed by a su r gical o p e r ating team and the p e r cent o f g o od p atient o utc o mes resulting f ro m the 
su r ge r y; and because t he benefits of g r eate r geog r a p hic access d o n ot o u t weigh the adverse affects caused by t he duplica t i o n o f 
exis t ing o p en heart su r ge r y se r vices and the r esulting dec r ease in the numbe r of pr ocedures the su r gical op era t ing t eam o f this 
se r vice would p e r form, it is the r ef or e determined tha t there is n o need for additional o p en heart surge r y se r vices. 

It is determined that there is a need for additional open heart surgerv services from any hospital which acquired a heart-lung 
bvpass machine prior to March 18. 1993 and which, nevertheless, is unable to use such machine iji the provision of open heart 
surgerv services because the hospital does not have a certificate of need authorizing it to provide open heart surgery services. It 
is further determined that the citizens served by. and residing in the general service areas of. such hospitals have a need for such 
additional open heart surgery services. These needs exist despite the capacity to provide open heart sur gery services of any other 
hospital or hospitals in the State. For the reason s set out in the 1997 State Medical Facilities Plan, there is no other need for 
additional open heart surgery services. 



12:6 NORTH CAROLINA REGISTER September 15, 1997 483 



TEMPORARY RULES 



History Note: Authority G.S. 131 £-176(25); 131 £-177(1); 131£-183(b); 
Temporary Adoption £Jf. January 2, 1997; 
Temporary Amendment Eff. September 1. 1997; 
[But see the Order for Preliminary' Injunction (captioned and quoted in part below) issued by Superior Court Judge A 
Howard £. Manning. Jr. on September 5, 1997.] \ 

NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE 

SUPERIOR COURT DIVISION 
WAKE COUNTY 97 CVS 9708 



FRYE REGIONAL MEDICAL CENTER, INC., 

Plaintiff, 



JAMES B. HUNT, JR., 

H. DAVID BRUTON, JR.. SECRETARY OF THE 
NORTH CAROLINA DEPARTMENT OF HUMAN 
RESOURCES, and NORTH CAROLINA DEPARTMENT 
OF HUMAN RESOURCES, 

Defendants, 

and 

CATAWBA MEMORIAL HOSPITAL, 

Intervenor-Defendant. 

[The ordered portion is quoted below] 

WHEREFORE, it is hereby ORDERED, ADJUDGED AND DECREED that: 

1. The effectiveness of the Governor's amendments to the State Medical Facilities Plan be and the same hereby is 
suspended and the Defendants Hunt, Bruton and the Department are hereby enjoined from applying, implementing, or taking any 
action whatsoever based upon the amendments or giving them any effect whatsoever, pending resolution of this case; 

2. The amendments to the SMTP respecting the CON review schedules made by the Department and Governor be 
and the same hereby are suspended and the Defendants Hunt. Bruton and the Department are hereby enjoined from applying, 
implementing, or taking any action whatsoever based upon the amendments or giving them any effect whatsoever, pending the 
resolution of this case; 

3. The pre-existing pro\isions of the 1997 SMFP setting forth the need determination regarding open heart surgery 
services be and the same are hereby reinstated, pending the resolution of this case; 

4. The special review criteria in effect prior to the July 23. 1997 amendments shall remain in effect as if the 
memorandum and amendment from the Governor had not been issued, pending the resolution of this case; 

5. As the Department was represented herein pursuant to G.S. 150B-2 1.1(c), any temporary rule, implementing the 
Governor's amendment, is hereby suspended and shall be given no effect and the pre-existing 1997 temporary rule shall remain 
in effect as written prior to the Governor's amendment, pending the resolution of this case. 

The sole basis of my determination is my conclusion that the Governor has no authority, as matter of law, to amend the SMFP. 
I specifically do not reach the other factual and legal issues raised by the parties. 

It is further ORDERED that no security is required of Frye during the pendency of this Order. 



484 NORTH CAROLINA REGISTER September 15, 1997 12:6 



\ 



i 



TEMPORARY RULES 



Further, pursuant to G.S. 1-277 and 7A-27 and Rule 54(b) of the Rules of Civil Procedure, because this action raises 
issues of first impression and the conclusion of law reached by the court herein in effect determines the action, I hereby certify this 
Order for immediate appeal by the Defendants to the North Carolina Court of Appeals because there is no just reason for delay 
and substantial rights of all parties are affected. 

Finally, the Governor's Memorandum purports to provide Catawba with a window of opportunity to file a certificate of 
need application for open heart surgery services in 1997. If this Order is overturned on appeal, and it is ultimately found that the 
Governor properly amended the SMFP, the effect of this Order would be to deny Catawba the opportunity to have the Department 
consider its certificate of need application because of the passage of time during the pendency of the appeal. In order to afford 
Catawba that opportunity, it is further ORDERED, pursuant to Rule 62(c) of the North Carolina Rules of Civil Procedure, that 
the effect of this preliminary injunction be suspended during the pendency of Defendants' appeal of the Order. However, if this 
Court's conclusion of law as to the Governor's lack of authority is upheld, any such application will continue to be subject to the 
provisions of the SMFP in effect prior to the Governor's amendment. In the event that Defendants do not elect to appeal this 
preliminary injunction, this suspension shall be lifted, and the preliminary injunction shall remain in effect during the pendency 
of this action. The parties do not object to this Order being entered out of term, out of county or out of district. 



SO ORDERED this 5"" day of September, 1997. 



s/Howard E. Manning, Jr. 
Superior Court Judge Presiding 
at Raleigh. Wake County 
3:15 p.m. 9/5/97 



.3061 HEART-LUNG BYPASS MACHINES NEED DETERMINATION FOR NEW OPEN HEART SURGERY 
SERVICES (REVIEW CATEGORY H) 

It is determined that there is no need for the acquisition of heart-lung bypass machines by anyone, anyone wh o does n ot currently 
o ffe r op en hear t surgery services. 

History Note: Authority G.S. 1 31 E-1 76(25); 131E-177(1); 131E-183(b); 
Temporary Adoption Eff. January 2, 7997; 
Temporary Amendment Eff. September 1. 1997. 

.3062 HEART-LUNG BYPASS MACHINES NEED DETERMINATION FOR EXISTING OPEN HEART SURGERY 
SERVICES (REVIEW CATEGORY H) 

A h e alth se r vice facili t y t hat curren t ly offers o p en hear t su r ge r y se r vices may apply for a cer t ificate of n eed t o acqui r e an 
additi o nal heart-lung by p ass machine a t its e xisting si te or location if the existing hear t -lung machin e s used by t he health se r vice 
facili t y we r e u t ilized a t or ab o ve 80% o f capacity du r ing the 12-mon t h pe r iod reflec t ed in t he m o st recen t licensure a pp lication on 
file with t h e Division o f Facility Se r vices. Th e ca p aci t y of h e ar t -lung by p ass machin e s tha t w er e acqui re d p ursuant to 1 99 5 N. C. 
Sessi o n Laws, e. 507, s. 23.22, and o f heart-lung bypass machines that were conditionally approved f o r use exclusively as back-up 
machines shall n o t be included in th e calcula t ion of t he facili t y's utiliza t ion of i t s e xisting hear t -lung machin e s. 

It is determined that there is no need for the acquisition of heart-lung bypass machines by anyone. 

History Note: Authority G.S. 131E-1 76(25); 131E-1 77(1); 1 31 E-1 83(b); 
Temporary Adoption Eff. January 2, 1997; 
Temporary Amendment Eff. September 1. 1997. 

.3063 CARDUC CATHETERIZATION EQUIPMENT NEED DETERMINATION FOR NEW PROVIDERS (REVIEW 
CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac catheterization equipment by anyone, anyon e who does not 
cur r en t ly o ffer cardiac cathete r iza t ion services. 

History Note: Authority G.S. 131 E-1 76(25); 131 E-1 77(1); 131E-1 83(b); 
Temporary Adoption Eff. January 2, 1997; 
Temporary Amendment Eff September 1. 1997. 

.3064 CARDIAC CATHETERIZATION EQUIPMENT NEED DETERMINATION FOR EXISTING PROVIDERS 
(REVIEW CATEGORY H) 



12:6 NORTH CAROLINA REGISTER September 15, 1997 485 



TEMPORARY RULES 



A heal t h se r vice facili t y t ha t cur re n t ly o ffe r s cardiac ca t heterizaiion services may apply for a certificate of need t o acquir e 
additional cardia c catheterizati o n equi p men t at i t s exis t ing si t e o r l o ca t ion if the existing cardiac ca t hete r ization equipment used by 
the health service facility was u t ilized at o r above 80% of capaci t y during the 12-m o nth p e r i o d reflected in the m o st r ecent licensure 
applica t i o n o n File wi t h the Division of Facility Services. 

It is determined that there is no need for the acquisition of cardiac catherterization equipment by anyone. 

History Note: Authority G.S. ] 31 £-176(25); 131 £-177(1); 131£-183(b); 
Temporary Adoption Eff. January 2, 1997; 
Temporary Amendment Eff. September I. 1997. 

.3065 CARDIAC ANGIOPLASTY EQUIPMENTT NEED DETERMINATION FOR NEW PROVIDERS (REVIEW 
CATEGORY H) 

It is determined that there is no need for the acquisition of cardiac angioplasty equipment by anyone, any o ne wh o d o es not 
currently offer cardiac angioplas t y services. 

History Note: Authority G.S. 131 £-176(25); 131E-177(1); 131E-1 83(b); 
Temporary Adoption Eff. January 2, 1 997; 
Temporary Amendment Eff. September 1. 1997. 

.3066 CARDIAC ANGIOPLASTY EQUIPMENT NEED DETERMINATION FOR EXISTING PROVIDERS (REVIEW 
CATEGORY H) 

A health se r vice facili t y that cur r ently offe r s ca r diac angio p lasty se r vic e s may apply f or a ce r tificate of need to acquire addi t i o nal 
cardiac angi o plasty equipm e nt a t its e xisting site o r l o cation if the existing cardiac angioplas t y equi p men t used by the health service 
facili t y was utilized a t or above 80% of ca p acity during the 12-month peri o d reflected in the most recen t licensure applica t ion on 
file wi t h the Division of Facility Services. 

It is determined that there is no need for the acquisition of cardiac angioplasty equipment by anyone. 

History Note: Authority G.S. 131E-176(25); 131£-177(1); 131£-183(b); 
Temporary Adoption Ejf. January 2, 7997,- 
Temporary Amendment Eff. September 1. 1997. 

.3072 NURSING CARE BED NEED DETERMINATION (REVIEW CATEGORY B) 

It is determined that the counties listed in this Rule need additional Long-Term Nursing Facility Beds as specified. There is no 
need for additional Long-Term Nursing Facility Beds in other counties, except as otherwise provided in 10 NCAC 3R .3073. 



i 



i 





Number of Nursing 


County 


Beds Needed 


Alexander 


40 


Burke 


90 


Cherokee 


30 


Cleveland 


60 


Haywood 


50 


Jackson 


40 


Macon 


50 


Transylvania 


30 


Yancey 


20 


Davidson 


100 


Surry 


70 


Yadkin 


40 


Iredell 


90 


Lincoln 


30 


Union 


90 


Granville 


20 


Johnston 


100 


Lee 


30 


Wake 


\m 170 



i 



486 NORTH CAROLINA REGISTER September 15, 1997 12:6 



TEMPORARY RULES 



Brunswick 


30 


Cumberland 


96 


Hamett 


50 


Hoke 


40 


Moore 


90 


New Hanover 


110 


Currituck 


20 


Greene 


30 


Lenoir 


40 


Nash 


60 



History Note: Authority G.S. 131 £-176(25); 131 £-177(1); 1 31 £-1 83(b); 
Temporary Adoption £ff. January 2, 1997; 
Temporar\' Amendment Eff. September 1. 1997. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

Rule-making Agency: North Carolina Board of Examiners in 
Optometry 

Rule Citation: 21 NCAC 42£ .0102 

Effective Date: September 15, 1997 

Findings Reviewed by Beecher R. Gray: Approved 

Authority for the rule-making: G.S. 90-18; 90-114; 90- 
121.2; 90-1272 

Reason for Proposed Action: The 1997 General Assembly 
enacted House Bill 527 (S.L. 1997-75) amending G.S. 90-114 
to permit optometrists to prescribe pharmaceutical agents 
without consultation with a physician. The rule-making 
conforms the Board's rules to the revised statute. 

Comment Procedures: Written comments concerning this rule 
should be submitted to the North Carolina Board of Examiners 
in Optometry, 109 N. Graham Street, Wallace, NC 28466. 

CHAPTER 42 - BOARD OF EXAMINERS IN 
OPTOMETRY 

SUBCHAPTER 42E - MODE OF PRACTICE 

SECTION .0100 - RESPONSIBILITY FOR PATIENTS 

.0102 PROFESSIONAL RESPONSIBILITY 

In keeping with the professional code, the optometrist shall: 

(1) attend to the visual needs of all those seeking his 
services without regard to financial remuneration; 

(2) maintain adequate equipment and instruments in his 
office at all times to assure proper and complete 
examination of patients. Such equipment and 



instruments shall include, but not be limited to, the 
following: a direct ophthalmoscope; an indirect 
ophthalmoscope; condensing lenses; proper 
instrumentation for foreign body removal; 
biomicroscope; instrument for plotting central and 
peripheral fields; applanation tonometer; distance and 
near acuity charts; test objects for stereopsis and 
fusion; color vision testing apparatus; refractor, trial 
frame or phorometer with trial case lenses; 
keratometer; and retinoscope; 

(3) sterilize according to usage all instruments or 
equipment used in the treatment of optometric 
patients, including those instruments or equipment 
used for the removal of foreign bodies from the 
external eye or its adnexa. All optometric offices 
shall follow infection control recommendations as set 
forth in the infection control manual as recommended 
by the American Optometric Association's 
Committee on Primary Care and Ocular Disease, or 
in the clinical guidelines of the American Optometric 
Association's Clinical Guidelines and Quality 
Assurance Coordinating Committee or their 
successors including subsequent adoptions, 
amendments, and editions. Copies of this material 
are available for inspection at the Board's office and 
may be obtained by paying a fee of ten dollars 
($10.00) to the Board; 

(4) assist his patients in whatever manner possible in 
obtaining further care when in his opinion other than 
his care is needed; 

(5) maintain adequate and available records on every 
patient containing case history, findings, diagnosis, 
treatment, and disposition. In compliance with this 
requirement, the patient record shall include the 
name of the patient's family physician or any other 
physician who may be consulted with regard to the 
care of the patient. The name and dosage of any 
medication prescribed shall be recorded with the 
diagnosis and instructions to the patient concerning 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



487 



TEMPORARY RULES 



f o ll o w-u p . — In any instance wh e re a t hera p eu t ic 
medica t ion, othe r than a medication being to p ically 
ap p lied, is p r escrib e d th e p a t i e n t recor d shall indica t e 
t ha t the consul t ing p hysi c ian noted on t h e re co r d is 
informed. Communica t i o n is d e si r able a t the time o f 



prescribing sys t emic medica t ion: how e v er , in the 
even t communicati o n is n o t po ssible at that momen t 
or if p revi o us protoco ls have been agreed t o by the 
consul t ing p hysician, the record shall indica t e such 
consul t a t ion or communica t ion t ook p lace withm 72 
h o urs — and — whethe r — snch — consultation — or 
communica t ion occurred by telephone, in writing, o r 
o the r wise ; follow-up: 

(6) retain full and independent control of and 
responsibility for patient records. This requirement 
does not preclude the licensee from providing copies 
of patient spectacle prescriptions for subsequent 
optical services, nor does it preclude the licensee 
from providing copies of patient records to any entity 
with the consent and authorization of the patient. 
Patient records shall be maintained by the optometrist 
responsible for such records for a period of not less 
than 5 years following the last entry into the patient's 
chart; 

(7) treat all information concerning his patients as 
confidential and not to be communicated to others 
except when authorized to do so by the patient or 



required by law; 

(8) have an established and appropriate procedure for the 
provision of eye care to his patients in the event of an 
emergency outside of normal professional hours, or 
when the licensee is not available due to vacation, 
persona] illness, attendance at professional meetings 
or continuing education programs, or other absences 
of a similar nature. Patients shall be informed of such 
procedure. The procedure referred to herein may 
include, but is not limited to, cooperative 
arrangements with another licensed optometrist or a 
physician licensed under North Carolina General 
Statutes Chapter 90, Article 1, a telephone answering 
system or pager; or written or posted instructions to 
the patient; 

(9) maintain full and independent control of the terms 
and conditions of any professional liability insurance 
coverage pertaining to his services. 

History Note: Authority G.S. 90-18: 90-114; 90-121.2; 90- 

127.2: 

Eff. February 1. 1976; 

Readopted Eff. May 30. 1978; 

Amended Eff. April 1, 1993; June 1, 1989, September 30, 

1981; 

Temporary- Amendment Eff. September 15. 1997. 



488 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursday. September 18. 1997. 
10:00 a.m.. at 1307 Glenwood Ave. , Assembly Room, Raleigh, NC. Anyone wishing to submit written comment on any rule 
before the Commission should submit those comments to the RRC staff, the agency, and the iruiividual Commissioners by 
Monda\. September 15. 1997. gl 5:00 p.m. Specific instructions arui addresses may be obtained from the Rules Review 
Commission at 919-733-2721. Anyone wishing to address the Commission should notify the RRC staff and the agency at 
least 24 hours prior to the meeting. 



) 



) 



RULES REVIEW COMMISSION MEMBERS 

Appointed by Senate Appointed by House 

Philip O. Redwine - Chairman Bill Graham - Vice Chairman 
Vemice B. Howard James Mallory, III 

Teresa L. Small wood Paul Powell 

Charles H . Henry Anita White 

RULES REVIEW COMMISSION MEETING DATES 

September 18, 1997 November 20, 1997 

October 16, 1997 December 18, 1997 



MEETING DATE: SEPTEMBER 18, 1997 

LOG OF FILINGS 

RULES SUBMITTED: JULY 20, 1997 THROUGH AUGUST 20, 1997 

AGENCY/DIVISION RULE NAME 

DHR/DrVISION OF MEDICAL ASSISTANCE 

Medicaid Criteria 
Personal Care Services 



Purpose 

Definitions 

Duties & Responsibilities 

Duties & Requirements 

Duties & Requirements 

Classification 

Qualifications for Exam 

Application Form 

Application Procedures 

Exam Procedures 

Renewal of Certification 

Revocation 

Recertification 

Who May Assess 

When Assessable 

Standards 

Assessment 

Payment and Hearing 

Referrals 



12:6 NORTH CAROLINA REGISTER September 15, 1997 489 



RULE 




ACTION 


10 NCAC 26B 


0113 


Amend 


10 NCAC 26H 


.0506 


Amend 


OR CERTinCATION C( 


OMMISSK 


15A NCAC 8F 


.0101 


Adopt 


15A NCAC 8F 


.0102 


Adopt 


15A NCAC 8F 


.0201 


Adopt 


15A NCAC 8F 


.0202 


Adopt 


15A NCAC 8F 


.0203 


Adopt 


15A NCAC 8F 


.0301 


Adopt 


15A NCAC 8F 


.0401 


Adopt 


15A NCAC 8F 


.0402 


Adopt 


15A NCAC 8F 


.0403 


Adopt 


15A NCAC 8F 


.0404 


Adopt 


15A NCAC 8F 


.0405 


Adopt 


15A NCAC 8F 


.0406 


Adopt 


15A NCAC 8F 


.0407 


Adopt 


15A NCAC 8F 


.0501 


Adopt 


15A NCAC 8F 


.0502 


Adopt 


15A NCAC 8F 


.0503 


Adopt 


15A NCAC 8F 


.0504 


Adopt 


15A NCAC 8F 


.0505 


Adopt 


15A NCAC 8F 


.0506 


Adopt 



RULES REVIEW COMMISSION 



DEHNR/WTLDLIFE RESOURCES COMMISSION 



No Wake Zone 


15A NCAC lOF .0308 


Amend 


No Wake Zone 


15ANCAC 10F.0330 


Amend 


No Wake Zone 


15A NCAC lOF .0339 


Amend 


NC STATE BOARD OF DENTAL EXAMINERS 






Exam Fee 


21 NCAC 16B .0303 


Amend 


Applications 


21 NCAC 161 ,0001 


Amend 


Continuing Education 


21 NCAC 161 .0002 


Amend 


Approved Courses 


21 NCAC 161 .0003 


Amend 


Penalty for Late Filing 


21 NCAC 161 .0006 


Amend 


Dentists 


21 NCAC 16M .0001 


Amend 


Primar>' Source 


21 NCAC 16M .0003 


Adopt 


Continuing Education Required 


21 NCAC 16R .0001 


Amend 


Exemption 


21 NCAC 16R .0004 


Amend 



NC BOARD OF EXAMINERS IN OPTOMETRY 

Written Exam 



21 NCAC42B .0107 



Amend 



STA IE PERSONNEL COMMISSION 






Career Growth 


25 NCAC ID .2501 


Amend 


Employees Eligible 


25 NCAC ID .2503 


Amend 


Effective Date 


25 NCAC ID .2504 


Amend 


Cost-of-Living Adjustment 


25 NCAC ID .2505 


Amend 


Employees Eligible 


25 NCAC ID .2507 


Amend 


Effective Date 


25 NCAC ID .2508 


Amend 


Performance Bonus 


25 NCAC ID .2509 


Amend 


Employees Eligible 


25 NCAC ID .2511 


Amend 


Basis for Awarding 


25 NCAC ID .2513 


Amend 


Final Disciplinary Procedure 


25 NCAC ID .2514 


Amend 


Administration 


25 NCAC IE .0705 


Amend 


Use of Leave 


25 NCAC IE .0707 


Amend 


Return to Work 


25 NCAC IE .0709 


Amend 



RULES REVIEW OBJECTIONS 



COMMERCE 



Credit Union Division 

4 NCAC 6C .0407 - Business Loans 



RRC Objection 



08/21/97 



EN"V IRONMENT, HEALTH, AND NATURAL RESOLUCES 



Coastal Resources Commission 

ISA NCAC 7H .0208 - Use Standards 
ISA NCAC 7H .1204 - General Conditions 



RRC Objection 
RRC Objection 



08/21/97 
08/21/97 



Environmental Management 

ISA NCAC 2H .022S - Conditions for Issuing General Permits 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



07/17/97 
08/21/97 



N.C. HOUSING FINANCE AGENCY 

24 NCAC IP .0103 - Types of Assistance 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



07/17/97 
08/21/97 



490 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



RULES REVIEW COMMISSION 



HUMAN RESOURCES 



Facility Services 

10 NCAC 3R .3033 - Open Heart Surgery Services Need Determinations (Rev. Cat. H) 



Agency Revised Rule 

Social Services Commission 

10 NCAC 42 J .0005 - Funding for Medical Ser\'ices 



RRC Objection 


01/16/97 


Obj. Cont'd 


02/20/97 


Obj. Cont'd 


03/20/97 


Obj. Cont'd 


06/19/97 


Obj. Cont'd 


07/17/97 


Obj. Removed 


08/21/97 


RRC Objection 


08/21/97 



TRANSPORTATION 



Division of Highways 

19A NCAC 2B .0164- Use of Right of Way Consultants 
Agency Revised Rule 



RRC Objection 
Obj. Removed 



07/17/97 
08/21/97 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



491 



CONTESTED CASE DECISIONS 



1 his Section contains thefiill text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of 
the decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office 
of Administrative Hearings, (919) 733-2698. 



i 



OFnCE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 
FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Dolores O. Smith 



AGENCY 



ALCOHOLIC BEVER.AGE CONTROL CONCVOSSION 

Michaels Mini Marl v Alcoholic Beverage Control Commission 
Everetie Craig Hornbuckle v Alcoholic Beverage Control Commission 
Saleh Ahmed All Futhah v Alcoholic Beverage Control Commission 
.Mcoholic Beverage Control Commission v Fast Fare. Inc. 
Alcoholic Beverage Control Commission v. Mendoza Enterprises. Inc. 
Alcoholic Beverage Control Commission v. Paradise Landing. Inc 
Alcoholic Beverage Control Commission v. Altaf Hussain 
Alcoholic Beverage Control Commission v. Robert Johnson 
Daniel Gary Ledbetter v. Alcoholic Beverage Control Commission 

CORRECTION 

David M. Boone v. Correction, Div of Prison Admin. Remedy Procedure 

CRIME CONTROL AND PUBLIC SAFETY 

Delia Sherrod v. Crime Victims Compensation Commission 
Beverly McLaughlin v Crime Victims Compensation Commission 
Rodney P. Hodge v Crime Victims Compensation Commission 
Billy Steen v. Crime Victims Compensation Commission 
Clifford R. Pulley v Crime Victims Compensation Commission 

ENVIRONMENT, HEALTH, AND NATLTIAL RESOURCES 

Linda Collie v Lenoir County Health Department 

Leroy Anderson v Couniy of Moore Department of Health 

E H. Garner v. New Hanover Health Department 

Peter D McDowell. Sr. v. New Hanover Health Department 

Riggings Homeowners .Assoc. Inc. v Environment. Health. & Natural Res. 

John Ronald Taylor v. Environment. Health. & Natural Resources 

Rick Parker v. Pitt County Health Dept./Mr, Ernie Nichols 

Environmental Management 

Henry G. Dail. Dail Brothers v EHNR. Environmental Management 



Maternal and Ctiild Health 

Evans Mini Mart v EHNR, Maternal &. Child Health. Nutrition Svcs Sec. 97 EHR 0599 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


92 ABC 1601 


Gray 


08/18/97 




93 ABC 0987 


Gray 


08/18/97 




94 ABC 0264 


Gray 


08/18/97 




96 ABC 0483 


Morrison 


06/18/97 




96 ABC 1196 


Gray 


08/26/97 




97 ABC 0031 


Gray 


06/13/97 




97 ABC 0312 


Mann 


07/29/97 




97 ABC 0321 


Gray 


08/25/97 




97 ABC 0443 


Gray 


07/08/97 




97 DOC 0534 


Morrison 


06/16/97 




96 CPS 0300 


Chess 


07/18/97 




97CPS0170 


Phipps 


08/29/97 




97 CPS 0449 


Reilly 


07/01/97 




97 CPS 0472 


Morrison 


07/23/97 




97 CPS 0523 


Gray 


08/06/97 




96 EHR 0264 


Becton 


07/16/97 




96 EHR 1969 


Morrison 


07/15/97 


12:03 NCR 223 


96 EHR 1972 


Gray 


08/07/97 




96 EHR 2075 


Gray 


08/07/97 




97 EHR 0263 


Reilly 


08/13/97 




97 EHR 0275 


Reilly 


06/09/97 




97 EHR 0470 


Phipps 


07/01/97 




96 EHR 2104 


Gray 


08/27/97 




97 EHR 0599 


Phipps 


07/14/97 





i 



4 



492 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Solid Waste Managemetu 

Loie J. Priddy v. Division of Solid Waste Management, EHNR 

Water Quality 

Castle Hayne Steering Committee v. EHNR, Division of Water Quality 

and 
New Hanover County Water and Sewer District 

HUMAN RESOURCES 

New Beginnings Christian Academy v. Department of Human Resources 
Cindy G. Geho v. Office of Administrative Hearings, R. Marcus Lodge 
Helen Wyman v. Department of Human Resources 
Ocelee Gibson v. Department of Human Resources 
Rita Faircloth v. Department of Human Resources 

Division of Child Development 

Cindy G, Geho v. Human Resources, Division of Child Development 

Division of Facility Services 

Ava McKinney v. DHR, Division of Facility Services 
Mercy Egbuleonu v, DHR, Facility Svcs, Health Care Personnel Reg. Sec. 
Mercy Egbuleonu v. Human Resources, Division of Facility Services 
Kizzie Cooper v. DHR, Facility Svcs, Health Care Personnel Registry Sec. 
Maggie J. Barnhill v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 
Emma Faison v. DHR, Division of Facility Services 
Patricia Addison v. DHR, Facility Svcs, Health Care Personnel Reg. Sec. 
Selena Louise Holley v DHR, Facility Svcs, Health Care Persl. Reg. Sec. 
Claudia K. Thomerson v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 
Michelle R. Griffin v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 
Therese Victoria Wilson v. DHR. Fac. Svcs, Health Care Pers. Reg. Sec. 
Helen T. Shokoti v. Human Resources, Division of Facility Services 
Jeri L. Anderson v. Human Resources, Division of Facility Services 
Susie A. Milsap v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 
Glenda Christine Taylor v. DHR, Facility Svcs. Health Care Pers. Reg. Sec 
Angela D. Johnson v. DHR, Facility Svcs, Health Care Pers. Reg. Sec. 
Cressie D. Mears v. DHR. Division of Facility Services 
Marie Emma Wimbush v. DHR. Facility Svcs. Health Care Pers. Reg. Sec. 

Certificate of Need Section 
Carolina Imaging. Inc/Fayeiteville v. DHR, Facility Svcs. CertyNeed Sec. 

and 
Cumberland Cty Hospital System. Inc., d/b/a Cape Fear Valley Med. Ctr. 

Group Licensure Section 
Jeffreys Family Care #2 v. DHR, Facility Svcs. Group Licensure Section 

Division of Medical Assistance 

Bettye Parson/Tambra Parson v. DHR, Div. of Medical Assistance 

Division of Social Services 

Child Support Enforcement Section 
Dale P. Sprinkle v. Guilford Child Support Agency. Human Resources 
Steven Van Linker v. Department of Human Resources 
Michael R. Bryant v. Department of Human Resources 
David Lee Chamblee Jr. v. Department of Human Resources 
Michael T. Swann v. Department of Human Resources 
Ted Wayne Lamb v Department of Human Resources 
Jeffrey Grainger v. Department of Human Resources 
Tollie Woods v. Department of Human Resources 
Fred Edward Stafford v. Department of Human Resources 
David N. Jarrett v. Department of Human Resources 
Stanley A. Watson v. Department of Human Resources 
Michael A. Isom v. Department of Human Resources 
Justin M. Woazeah. Sr. v. Department of Human Resources 
Calvin F. Mizelle v. Department of Human Resources 
Tommy Lee Clark v. Department of Human Resources 
Ander L. Garfield v. Department of Human Resources 
Clarence O. Rains v. Department of Human Resources 
Edward Stuteville v. Department of Human Resources 
David Fraizer v. Department of Human Resources 
David Fraizer v. Department of Human Resources 
David Hobson v. Department of Human Resources 



96 EHR 1838 



96EHR 1731 



Morrison 



Mann 



96 DHR 1925 


Reilly 


97 DHR 0286 


Chess 


97 DHR 0407 


Reilly 


97 DHR 0658 


Reilly 


97 DHR 0900 


Reilly 


97 DHR 0966 


Phipps 


96 DHR 2061 


Chess 


97 DHR 0172 


Bee ton 


97 DHR 0450 


Gray 


97 DHR 0459 


Phipps 


97 DHR 0465 


Gray 


97 DHR 0471 


Gray 


97 DHR 0521 


Mann 


97 DHR 0524 


Phipps 


97 DHR 0551 


Chess 


97 DHR 0559 


Gray 


97 DHR 0632 


Phipps 


97 DHR 0653 


Chess 


97 DHR 0659 


Gray 


97 DHR 0667 


Phipps 


97 DHR 0681 


Gray 


97 DHR 0723 


Chess 


97 DHR 0793 


Chess 


97 DHR 0797 


Phipps 



96 DHR 1570 Phipps 



97 DHR 0259 Mann 



97 DHR 0656 Becton 



06/20/97 



06/30/97 



08/22/97 
07/23/97 
08/08/97 
07/22/97 
08/15/97 



08/29/97 



07/08/97 
07/16/97 
09/02/97 
06/09/97 
07/30/97 
07/15/97 
07/25/97 
08/28/97 
07/15/97 
07/30/97 
08/25/97 
08/20/97 
08/19/97 
08/25/97 
08/29/97 
08/06/97 
08/21/97 
08/25/97 



06/24/97 



06/17/97 



08/12/97 



12:02 NCR 103 



96CRA1I71 


Gray 


08/13/97 


96 CRA 1250*- 


Becton 


07/11/97 


96 CRA 1252 


Phipps 


08/11/97 


96 CRA 1281 


Morrison 


06/16/97 


96 CRA 1326 


Chess 


06/04/97 


96 CRA 1359 


Gray 


07/10/97 


96 CRA 1376 


Reilly 


08/14/97 


96 CRA 1348*' 


Morrison 


08/04/97 


96 CRA 1407*" 


Reilly 


08/21/97 


96 CRA 1438 


Morrison 


07/10/97 


96 CRA 1448*" 


Reilly 


08/21/97 


96 CRA 1450 


Becton 


07/11/97 


96 CRA 1452*' 


Chess 


07/22/97 


96 CRA 1476 


Chess 


07/07/97 


96 CRA 1477 


Phipps 


08/13/97 


96 CRA 1479*' 


Morrison 


07/15/97 


96 CRA 1482 


Reilly 


08/21/97 


96 CRA 1507*" 


Mann 


08/13/97 


96 CRA 1519*'° 


Chess 


07/18/97 


96 CRA 1520*'° 


Chess 


07/18/97 


96 CRA 1522*" 


Phipps 


07/24/97 



12:02 NCR 95 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



493 



CONTESTED CASE DECISIONS 



AGENCY 

David Scon Jordan v, Deparimeni of Human Resources 

Lee R. Jones v Department of Human Resources 

Cecil Hall v. Department of Human Resources 

Neil G McGilberry v Department of Human Resources 

Dennis Larson v. Deparimeni of Human Resources 

Eric L. Harrington v Department of Human Resources 

Paul F, Gangemi. Sr, v. Department of Human Resources 

Scott M Rodriguez v. Department of Human Resources 

James Withers v Department of Human Resources 

Patrick Orlando Crump v Department of Human Resources 

Ronald L Hadley v Department of Human Resources 

Garland M, Jessup v. Guilford County Child Support Enforcement 

Walter Hawk v. Department of Human Resources 

Roger G Foster v. Department of Human Resources 

Charlie T Smith v. Department of Human Resources 

Joseph Davis v Department of Human Resources 

Joseph Michael Eubanks v. Department of Human Resources 

Von/cU Barker v. Department of Human Resources 

Charles F King v Department of Human Resources 

Lane Bolton v. Department of Human Resources 

Monty G Cox v. Randolph County Child Support Enforcement Agency 

Steven Van Linker v. Department of Human Resources 

Barry Tukes Sr. v. C.S E, 

Monty G. Cox v, Randolph County Child Support Enforcement Agency 

Harriet Tolson v. Department of Human Resources 

Edgar C Lewis, Jr. v Department of Human Resources 

Willie L Berry v. Department of Human Resources 

Tony Orlando Steele v. Department of Human Resources 

Carl Locklear v Deparimeni of Human Resources 

Tollie Woods v. Department of Human Resources 

Charles L. Raynor v. Department of Human Resources 

Robert Walker v. Intercept Tax Refunds 

Fred Edward Stafford v. Department of Human Resources 

Stanley A. Watson v. Department of Human Resources 

Justin M Woazeah. Sr v Department of Human Resources 

William A. Underbill v Department of Human Resources 

Almiron J Deis v Department of Human Resources 

Alfred Clinton Springs v Department of Human Resources 

Ander L Garfield v. Department of Human Resources 

Edward Sluleville v. Department of Human Resources 

David Hobson v. Department of Human Resources 

Gregory D Simpson v Department of Human Resources 

Donald Ray Archie v. Department of Human Resources 

John W Liverman v. Department of Human Resources 

Vincent L. Martin v. Department of Human Resources 

Harlie Leonard Hardison v Department of Human Resources 

David Fraizer v. Department of Human Resources 

Golet Holloway, Jr. v Department of Human Resources 

Jeffrey Pierce v. Department of Human Resources 

Patrick Orlando Crump v Department of Human Resources 

William C Rivera v. Department of Human Resources 

Lenora McCracken v Department of Human Resources 

Lee R Jones v. Department of Human Resources 

Cecil Hall v Department of Human Resources 

Neil G. McGilberry v. Department of Human Resources 

Devin J Bello v Department of Human Resources 

Scott M Rodriguez v Department of Human Resources 

James Withers v. Department of Human Resources 

Sean Hcitz v. Department of Human Resources 

Nathan S. Lockhart Sr. v Department of Human Resources 

Scott James Petrill v Department of Human Resources 

Daniel E. Carpenter v. Department of Human Resources 

Daniel D Morse v Department of Human Resources 

Daryl E Shankle v Child Support Enforcement Agency 

Jeffrey William Strama v Department of Human Resources 

Joseph Fernandez v Department of Human Resources 

Tommy L Hmes Sr v Forsyth County Child Support Enforcement 

Irvan Jemal Fontenot v Department of Human Resources 

Pearlie Blakney v. Department of Human Resources 

Leroy Grooms v. Department of Human Resources 



CASE 




DATE OF 


^fUMBER 


AU 


DECISION 


96 CRA 1673 


Reilly 


07/18/97 


96CRA 1720*' 


Phipps 


07/10/97 


96 CRA 1749*> 


Mann 


07/10/97 


96 CRA 1767*' 


Becton 


07/15/97 


96 CRA 1793 


Chess 


06/17/97 


96 CRA 1794 


Mann 


07/19/97 


96 CRA 1809 


Gray 


08/13/97 


96 CRA 1818-' 


Gray 


06/25/97 


96 CRA 1820 


Reilly 


07/24/97 


96 CRA 1866*" 


Gray 


08/18/97 


96 CRA 1892 


Reilly 


07/18/97 


96 CRA 1898 


Becton 


07/11/97 


96 CRA 1943 


Phipps 


08/13/97 


97 CRA 0043 


Phipps 


06/19/97 


97 CRA 0280 


Reilly 


06/16/97 


97 CRA 0436* '> 


Phipps 


08/11/97 


97 CRA 0477 


Reilly 


07/18/97 


97 CRA 0620 


Becton 


08/12/97 


97 CRA 0720 


Reilly 


07/30/97 


96 CSE 1220 


Reilly 


08/21/97 


96CSE 1235*" 


Becton 


08/12/97 


96 CSE 1249*- 


Becton 


07/11/97 


96 CSE 1277 


Mann 


07/01/97 


96 CSE 1278*"' 


Becton 


08/12/97 


96 CSE 1280 


Reilly 


08/21/97 


96 CSE 1299 


Mann 


08/20/97 


96 CSE 1319 


Gray 


06/25/97 


96 CSE 1337 


Mann 


06/30/97 


96 CSE 1338 


Mann 


07/07/97 


96 CSE 1340*' 


Morrison 


08/04/97 


96 CSE 1382 


Becton 


07/11/97 


96 CSE 1384 


Morrison 


07/24/97 


96 CSE 1406*" 


Reilly 


08/21/97 


96 CSE 1449*" 


Reilly 


08/21/97 


96 CSE 1453*' 


Chess 


07/22/97 


96 CSE 1455 


Mann 


07/18/97 


96 CSE 1456 


Gray 


06/25/97 


96 CSE 1473 


Reilly 


08/21/97 


96 CSE 1480*' 


Morrison 


07/15/97 


96 CSE 1508*" 


Mann 


08/13/97 


96 CSE 1521*" 


Phipps 


07/24/97 


96 CSE 1527 


Reilly 


06/25/97 


96 CSE 1558 


Becton 


07/11/97 


96 CSE 1568 


Becton 


07/11/97 


96 CSE 1574 


Gray 


08/04/97 


96 CSE 1578 


Becton 


08/25/97 


96 CSE 1610*'° 


Chess 


07/18/97 


96 CSE 1611 


Becton 


07/11/97 


96 CSE 1613 


Mann 


06/30/97 


96 CSE 1614*'-' 


Gray 


08/18/97 


96 CSE 1622 


Mann 


06/18/97 


96 CSE 1644 


Mann 


06/30/97 


96 CSE 1719*' 


Phipps 


07/10/97 


96 CSE 1750*' 


Mann 


07/10/97 


96 CSE 1766*" 


Becton 


07/15/97 


96 CSE 1774 


Phipps 


07/16/97 


96 CSE 1817*' 


Gray 


06/25/97 


96 CSE 1821 


Reilly 


08/21/97 


96 CSE 1909 


Chess 


07/22/97 


96 CSE 1910 


Phipps 


07/16/97 


96 CSE 1914 


Morrison 


07/30/97 


96 CSE 1917*'- 


Phipps 


07/25/97 


96 CSE 1942 


Chess 


08/19/97 


96 CSE 1977 


Becton 


07/11/97 


96 CSE 2043 


Becton 


07/11/97 


96 CSE 2066 


Chess 


08/21/97 


97 CSE 0015 


Reilly 


07/18/97 


97 CSE 0223 


Becton 


07/11/97 


97 CSE 0254 


Phipps 


07/24/97 


97 CSE 0258*' 


Becton 


07/18/97 



PUBLISHED DECISION 
REGISTER CITATION 



< 



I 



i 



Consolidated Cases. 



494 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



CONTESTED CASE DECISIONS 



AGENCY 

Sarah Chambers v. Deparimeni of Human Resources 

Leroy Grooms v. Departmeni of Human Resources 

Theodore McCleese v. Depariment of Human Resources 

Geriru Jefferson Ward v. Department of Human Resources 

William A. Rogers v. Depariment of Human Resources 

Mark R. Kearney v. Depariment of Human Resources 

Michael J. Powell v. Department of Human Resources 

Joseph Davis v. Department of Human Resources 

James G. Davis v. Department of Human Resources 

Randy Gavurnik v. Department of Human Resources 

Curtis Leon Mock v. Department of Human Resources 

Daniel E, Carpenter v. Depariment of Human Resources 

Guy R- Auger v. Brunswick County Child Support Enforcement 

Andrew J. Hough v. Depariment of Human Resources 

David F- Norman v. Deparimeni of Human Resources 

Mar F. Jones v. Department of Human Resources 

David Hobson v. Department of Human Resources 

Jerry Whitley v. Mecklenburg County Child Support Enforcem.ent 

Linda Wade-Hargrove v. Department of Human Resources 

Regina C- Sullivan v Department of Human Resources 

INSURANCE 

Joseph J. Peacock v. Department of Insurance 

JUSTICE 

Barbara Carter Irons v DHR. Division of Facility Services 

Imran Ramnarine v. Department of Justice, Company Police Program 

Alarm Systems Licensing Board 

Kim Brian Phelps v. Alarm Systems Licensing Board 

Education and Training Standards Division 

Charles Thomas Ohnmacht, Jr v Crimf Justice Ed/Training Stds. Comm. 
James Haywood Mathews, Jr. v. CrimI- Justice EdATraining Stds. Comm. 
Christopher Lee v. Criminal Justice Ed. & Training Standards Comm. 
Steven Wayne Olsen v. Criminal Justice Ed. & Training Standards Comm. 
Joseph Lonnie Wesson v. Criminal Justice Ed. & Training Standards Comm 
Frank Arlander Hearne v. Criml. Justice Ed. & Training Stds. Comm. 
Audrey McDonald Rodgers v Sheriffs' Ed. &. Training Sids. Comm. 
Derrick W. Bowens v. Sheriffs' Education & Training Standards Comm. 
William Wayne McDowell v. Sheriffs' Education & Training Stds. Comm. 

Private Protective Services Board 

Private Protective Services Board v. Phillip L. Hanson 

Ronald Anthony Bobeck v. Private Protective Services Board 

PUBLIC INSTRUCTION 

Nicholas Eirschele, by his parents, Charles & Kathy Eirschele v. Craven 

County Board of Education 
Karen L. Holgersen v. Depariment of Public Instruction 
Meridiih Kirkpatrick. by her parent. Susan Kirkpairick and Meridilh 

Kirkpatrick, Individually v. Lenoir County Board of Education 
Brenda Joyce Brooks Lovely v. State Board of Education 



CASE 




DATE OF 


PUBLISHED DECISION 


NUMBER 


AU 


DECISION 


REGISTER CITATION 


97 CSE 0278 


Morrison 


06/16/97 




97CSE0297*' 


Becton 


07/18/97 




97 CSE 0353 


Morrison 


08/05/97 




97 CSE 0381 


Chess 


08/22/97 




97 CSE 0410 


Gray 


06/25/97 




97 CSE 0417 


Reilly 


08/07/97 




97 CSE 0418 


Becton 


08/12/97 




97 CSE 0435*'* 


Phipps 


08/11/97 




97 CSE 0448 


Gray 


07/28/97 




97 CSE 0454 


Morrison 


08/04/97 




97 CSE 0490 


Mann 


06/17/97 




97 CSE 0501*'- 


Phipps 


07/25/97 




97 CSE 0600 


Morrison 


07/18/97 




97 CSE 0615 


Reilly 


08/21/97 




97 CSE 0672 


Gray 


07/28/97 




97 CSE 0777 


Phipps 


08/28/97 




97 CSE 1747*" 


Phipps 


07/24/97 




97 CSE 2037 


Reilly 


08/21/97 




97 DCS 0365 


Becton 


07/11/97 




97 DCS 0482 


Becton 


07/18/97 




96 INS 0433 


Becton 


07/25/97 


12:04 NCR 327 


97 DOJ 0669 


Phipps 


08/27/97 


12:06 NCR 501 


97DOJ2071 


Becton 


06/11/97 




96 DOJ 1785 


Gray 


08/08/97 




96 DOJ 0353 


Phipps 


06/13/97 




96 DOJ 1957 


Reilly 


07/31/97 




97 DOJ 0076 


Morrison 


06/19/97 




97 DOJ 0077 


Phipps 


08/21/97 




97 DOJ 0136 


Reilly 


08/26/97 




97 DOJ 0137 


Reilly 


06/10/97 




97 DOJ 0308 


Reilly 


07/31/97 




97 DOJ 0661 


Smith 


08/29/97 




97 DOJ 0817 


Morrison 


08/22/97 




96 DOJ 0795 


Smith 


06/05/97 




97 DOJ 0476 


Morrison 


06/20/97 




96 EDC 0655 


Mann 


08/25/97 




96 EDC 0808 


Smith 


05/27/97 




96 EDC 0979 


Overby 


06/02/97 




97 EDC 0089 


Morrison 


08/01/97 





STATE PERSONNEL 



Brunswick Community College 

Dr Donald W. Skmner v. Brunswick Community College 



97 OS? 0310 



Phipps 



06/12/97 



Correction 

Rodney Jones, Paula Hawkins, James McKoy v. Dept. of Correction 96 OSP 1051*''' Phipps 

Rodney Jones. Paula Hawkins, James McKoy v Dept. of Correction 96 OSP 1 1 19*'^ Phipps 

Rodney Jones, Paula Hawkins, James McKoy v. Dept. of Correction 96 OSP 1 120*'^ Phipps 

Larry Wayne Pruitt, Jr V Deparimeni of Correction 96 OSP 1133 Gray 

William Hershel Bradley v. Franklin Freeman. Supt. Mark Hughes. 96 OSP 1604 Phipps 

Grant Spicer. Asst. Supi Wade Hatley, et al, Departmeni of Correction 

Dennis Harrell v. Depariment of Correction 96 OSP 2039 Chess 

Morton Floyd V. New Hanover Deparimeni of Correction 97 OSP 0152 Gray 

William A. Rich v. Dennis Rowland (Asst. Supt.) Wake Corr. Ctr. DOC 97 OSP 0542 Gray 



08/20/97 
08/20/97 
08/20/97 
08/11/97 
06/19/97 

06/18/97 
06/13/97 
09/02/97 



Employment Security Commission 

Broxie J. Nelson v. Employment Security Commission 
Mary H Ranson v Employment Security Commission 



96 OSP 0378 

97 OSP 0387 



Becton 
Mann 



07/10/97 
07/24/97 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



495 



CONTESTED CASE DECISIONS 



AGENCY 

Human Resources 

Robert Tilson Morley v. Department of Human Resources 

Glen Sutton v Cumberland County Department of Social Services 

Pamela Massey v. Department of Human Resources 

Clifton Dean Hill v. Department of Human Resources 

Calvin E. Kaiser v. Southeastern Mental Health Center 

Troy Games v. Durham County Mental Health Department 

Edward Percell Eason v. Department of Human Resources 

Lisha Dawn Byrd v. Human Resources (Western Carolina Center) 

Antonio A. Archibeque v Barbara D. Whitley. Dir. Stanly County DSS 

Public Instruction 

Frances Phillips Melott v Department of Public Instruction 

University of North Carolina 

Diane Riggsbee-Raynor v. UNC at Chapel Hill 
Darrell J Hampton v. NC Central University 
William A Covington v, NC A & T State University 

STATE TREASURER 

Shelby H Underwood, etal. v. Trustees Teachers/St. Emp Ret. Sys. 



TRANSPORTATION 

Audrey W Harris v. Transportation. MansonAVheat Contr., & Wake Elec 97 DOT 0566 



CASE 




DATE OF 


PUBLISHED DECISION 


NLTVIBER 


ALJ 


DECISION 


REGISTER CTTATION 


96 OSP 0969 


Gray 


08/21/97 




96 0SP 1296 


Gray 


07/17/97 




96 OSP 1927 


Becton 


08/28/97 


12:06 NCR 497 


97 OSP 0007 


Phipps 


06/20/97 


12:02 NCR 107 


97 OSP 0073 


Gray 


08/08/97 




97 OSP 0347 


Mann 


08/05/97 




97 OSP 0363 


Gray 


08/15/97 




97 OSP 0491 


Morrison 


08/28/97 




97 OSP 0663 


Smith 


09/02/97 




95 OSP 0907 


Trawick 


06/09/97 




96 OSP 0326 


Chess 


06/04/97 


12:01 NCR 39 


97 OSP 0155 


Mann 


08/11/97 




97 OSP 0686 


Becton 


08/29/97 




96 DST 0390 


ReiUy 


08/05/97 




97 DOT 0566 


Gray 


07/28/96 





< 



i 



i 



496 



NORTH CAROLINA REGISTER 



September 15, 1997 



12:6 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

96 OSP 1927 



PAMELA MASSEY, 

Petitioner, 



DEPARTMENT OF HUMAN RESOURCES, 
Respondent. 



RECOMMENDED DECISION 

GRANTING 

SUMMARY JUDGMENT 

TO RESPONDENT 



THIS MATTER came on to be heard upon consideration of Respondent's motion for sunmiary judgment. Respondent 
contended that the Petitioner was unable to establish two essential elements of her claim for denial of current State employee 
preference, that being, (I) that Petitioner was minimally qualified to fill the position she applied for; and (2) that Petitioner's 
qualifications were substantially equal to those of the successful applicant. The motion was filed in March of 1997. Upon review 
of the pleadings, the motions, the responses, and the law, the undersigned finds that the following facts are undisputed: 

1 . On or about April 1 , 1996, Mr. H.G. Royall, Property and Construction Chief, notified his supervisor, Dr. Lee Kittredge, 
the Director of DHR's Division of Budget and Analysis, that he intended to retire effective April 30, 1996. Mr. Royall suggested 
that Dr. Kittredge consider requiring that the next occupant of the position be an engineer. Dr. Kittredge requested assistance from 
the personnel office in evaluating this suggestion but ultimately decided not to adopt this suggestion. 

2. On or about August 16, 1996, DHR's Secretary's Office posted the Property and Construction Chief position (Business 
Officer III, pay grade 77). As listed on the posting and in the class specification, the minimum education and experience required 
for the position was graduation from a four year college/imiversity and six years of administrative experience involving participation 
in the planning and management of a business or governmental program; or an equivalent combination of education and experience. 

3. There were twenty-four applicants for the Business Officer III position, including Petitioner. The applications were 
prescreened by Ms. Debbie Souza, Personnel Assistant, in the Office of the Secretary, Personnel Office, to determine whether the 
applicants met the minimum qualifications for the position. Based upon her initial review of the applications, Ms. Souza determined 
that only fourteen of the applicants met the minimum qualifications for the position. Petitioner's application was among those that 
Ms. Souza determined did not meet the minimum qualifications. This determination was based upon Petitioner's lack of 
administrative experience. 

4. Because Petitioner was an internal applicant (Petitioner worked in the Division of Budget and Analysis and was supervised 
by Mr. Royall) and in accordance with standard office practice, Ms. Souza asked Mr. John Gale, Personnel Analyst III in DHR's 
Division of Personnel Services, Classification and Compensation Section, to review Petitioner's application and provide a second 
opinion regarding Petitioner's qualifications for the position. After reviewing Petitioner's application, Mr. Gale determined that 
Petitioner did not meet the minimum qualifications. This determination was subsequently confirmed by Mr. Terry Johnston, Chief 
of DHR' Classification and Compensation Section, and Ms. Dana Lyle, Personnel Analyst III, in the Office of State Personnel's 
(OSP) Administrative Services Division. 

5. Ms. Souza determined that Mr. Lail, the successful applicant, not only met, but exceeded, the minimum qualifications 
for the position. This determination was later confirmed by Mr. Patrick McCoy, Personnel Manager for DHR's Office of the 
Secretary, Mr. Johnston, and Ms. Lyle. 

6. Despite the personnel office's determination that Petitioner did not possess the minimum qualifications for the posinon, 
Dr. Kittredge, decided to give Petitioner a courtesy interview. He did this because Petitioner was an in-house applicant, was 
actually supervised by the Property and Construction Chief, and was considered by Dr. Kittredge to be a valued member of his 
staff. During the interview. Dr. Kittredge did not inform Petitioner that the personnel office had determined that she was not 
qualified for the position, but did discuss with Petitioner her lack of experience with regard to handling big projects and her lack 
of experience generally in the areas of administration and budget. 



7. 



Dr. Kittredge was generally familiar with Petitioner's work in the Division and considered her an excellent employee. 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



497 



CONTESTED CASE DECISIONS 



Petitioner had been assigned to Dr. Kittredge's Division in 1991. In November of 1993, Dr. Kittredge requested that Petitioner's 
position be reallocated. Based upon this request and a review of the position description, the position was reallocated from a 
Computer Support Technician (pay grade 60) to a Real Property Agent I (pay grade 70). Because Petitioner did not meet the 
minimum education and experience requirements for a Real Property Agent I, Petitioner was placed in a two year trainee 
progression to give her the opportunity to gain the required experience for this classification. In September of 1995, Dr. Kittredge 
requested an acceleration of the trainee schedule. Mr. McCoy requested and received approval to truncate the trainee progression 
and award Petitioner the full status of a Real Property Agent I. This change became effective September 1, 1995. Petitioner 
received the maximum salary increase available for this type of trainee progression under existing Office of State Personnel 
Guidelines. 

8. At the conclusion of the interview process. Dr. Kittredge concluded that only two of the applicants possessed the necessary 

training and experience to perform the duties of the Business Officer III; both applicants were former State employees; both 
applicants had extensive administrative and real estate experience. He recommended that one of these two applicants be hired to 
fill the position. Mr. Lail was one of the two applicants that Dr. Kittredge recommended. Petitioner was not. Dr. Kittredge 
recommended Mr. Lail because of his extensive administrative experience as the former head of a State-wide program (in excess 
of 11 years) and his extensive experience in real estate management in the private sector (in excess of 7 years). Mr. Lail's 
administrative and real estate experience far exceeded that of Petitioner. 

Based upon the foregoing undisputed facts, the undersigned makes the following conclusions of law: 

1. G.S. § 126-7. l(c)provides that. 

If a State employee subject to this section: 

(1) Applies for another position of State employment that would constitute a promotion and; 

(2) Has substantially equal qualifications as an applicant who is not a State employee then the State employee shall 
receive priority consideration over the applicant who is not a State employee. This priority consideration shall 
not apply when the only applicants considered for the vacancy are current State employees. 

2. G.S. §126-7.1(d) provides that, 

"Qualifications" within the meaning of subsection (c) of this section shall consist of: 

(1) Training or education; 

(2) Years of experience; and 

(3) Other skills, knowledge, and abilities that bear a reasonable functional relationship to the abilities and skills 
required in the job vacancy applied for. 

3. The SPC has adopted rules with regard to both "minimum qualifications" and "substantially equal qualifications." These 
rules have the force and effect of law, Amanini v. N. C. Department of Human Resources, 1 14 N. C. App. 668 at 678, 443 S.E.2d 
at 334 (1994). The rules are as follows: 

25 NCAC IH .0607. MINIMUM QUALIFICATIONS 

(a) The employee or applicant must possess at least the minimum education and experience requirements, or their 
equivalent, set forth in the class specification of the vacancy being filled. This shall apply in new appointments, 
promotions, demotions, transfers, and reinstatements. 

(b) The education and experience requirements serve as indicators of the possession of the skills, know ledges, 
and abilities which have been shown through job evaluation to be important to successful performance, and as 
a guide to primary sources of recruitment. It is recognized that a specific quantity of formal education or number 
of years experience does not always guarantee possession of the necessar>' skills, know ledges, and abilities for 
every position. Qualifications necessary to perform successfully may be attained in a variety of combinations. 
In ewluating qualifications, reasonable substitutions of formal education and Job-related experience, one for the 
other, will be made. 



498 NORTH CAROLINA REGISTER September 15, 1997 12:6 



CONTESTED CASE DECISIONS 



(c) Management is responsible for determining the vacancy-specific qualifications that are an addition to 
minimum class standards. Such qualification requirements must bear a logical and job-related relationship to the 
minimum standard. Management shall be responsible for the adverse effects resulting from the use of qualification 
standards that are unreasonably construed. 

(d) The final determination of qualifications in questionable selection situations rests with the Office of State 
Personnel. 

25 NCAC IH .0625. PROMOTIONAL PRIORITY CONSIDERATION FOR CURRENT EMPLOYEES 

(a) A promotional priority consideration shall be provided by all agencies to all current state employees who have 
achieved career status, as that term is defined in G.S. 126-lA. 

(b) The priority consideration which is to be given a state employee who applies for a position which represents 
a promotion for that employee and who otherwise meets the criteria set out in G.S. 126-7. 1 is that he shall be 
offered the position in question. 

(c) "Substantially equal qualifications " occur when the employer cannot make a reasonable determination that 
the job-related qualifications held by one person are significantly better suited for the position than the 
job-related qualifications held by another person. (Emphasis added) 

4. Read in combination, these two rules require that in order for a current State employee to be entitled to priority 
consideration under G.S. §126-7.1, he or she must not only meet the minimum education and experience requirements for the 
position as contained in the class specification, his or her qualifications for the position must be such that the individual making 
the selection decision cannot make a reasonable determination that there is any other applicant who's job-related qualifications for 
the positions are significantly better. 

5. In the present case, in order to be entitled to the application of current State employee preference. Petitioner must not only 
show that she met the minimum qualifications for the Business Officer III position, she must also show that her qualifications for 
the position were "substantially equal" to those of the successful applicant. 

6. As set forth in the class specification for a Business Officer III, the minimum education and experience requirements for 
the position are: graduation from a four year college/university and six years of administrative experience involving participation 
in the planning and management of a business or governmental program. While Petitioner had the required degree, she lacked the 
necessary experience to qualify for the position. 

7. With regard to Petitioner's claim that she met the minimum requirements for the position under the "or equivalent 
combination of training and experience" provision: 1) the "equivalencies" provision only allows for the substitution of education 
for experience or vice versa and Petitioner had no additional education which she could substitute for the missing experience; and 
2) the Petitioner cannot show that she had previously performed all of the duties of the Business Officer 111 position. 

8. Because Petitioner cannot show that she either met the minimum experience requirements for the Business Officer III position 
or that she had actual experience performing all of the duties of the Business Officer III, she cannot show that she was qualified 
to perform the duties of the position. 

9. Even if Petitioner could show that she was minimally qualified to fill the position, she cannot show that her qualifications 
were substantially equal to those of Mr. Lail. Mr. Lail had 1 1 years of "public sector" (State) budget experience and 7 years of 
"private sector" capital budget experience. Petitioner had less than four years of "public sector" (State) budget experience. Mr. 
Lail had seven years of real estate experience. Petitioner had less than three years of real estate experience. Mr. Lail had a "Real 
Estate Broker" license. Petitioner had a "Real Estate Salesman" license. While Petitioner emphasizes that her experience was "with 
Respondent" and that the job description stressed a need for experience "with Respondent," that experience requirement is not 
contained in either the class specification or the posting. Further, the SPC rules state that it is the class specification, not the job 
description, which determines the minimum requirements for the position. 25 NCAC IH .0607. Further, while Petitioner had 
actual experience performing certain aspects of the Property and Construction Chief job, she lacked experience in such areas as: 
project management, budget allotments, budget overruns, advance planning, transfer of funds, and budget adjustments. Mr. Lail 
had experience in all of these areas. Petitioner caimot show that her qualifications were substantially equal to those of Mr. Lail. 



12:6 NORTH CAROLINA REGISTER September 15, 1997 499 



CONTESTED CASE DECISIONS 



THEREFORE, IT IS ORDERED that summary judgment is granted in favor of the Respondent. 

RECOMMENDED DECISION 

IT IS HEREBY RECOMMENDED that the State Personnel Commission affirm DHR's selection decision with regard 
to the filling of the Property and Construction Chief position (Business Officer III) for the reason that Respondent did not violate 
the current State employee preference requirements. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative Hearings, P.O. 
Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statutes section 150B-36(b). 

NOTICE 

Before the agency makes the FINAL DECISION, it is required by North Carolina General Statute section 150B-36(a) to 
give each party an opportunity to file exceptions to this RECOMMENDED DECISION, and to present written arguments to those 
in the agency who will make the final decision. 

The agency is required by North Carolma General Statute section I50B-36(b) to ser\'e a copy of the Final Decision on all 
parties and to furnish a copy to the Parties' attorneys of record. 

This the 28^^ day of August, 1997. 



I 



Brenda B. Becton 
Administrative Law Judge 



i 



s 



500 NORTH CAROLINA REGISTER September 15, 1997 12:6 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF CUMBERLAND 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

97 DOJ 0669 



BARBARA CARTER IRONS, 




Petitioner, 




V. ^ 


1 FINAL DECISION 




1 ORDER DISMISSING 


NORTH CAROLINA DEPARTMENT OF HUMAN, 


1 CONTESTED CASE 


RESOURCES, DIVISION OF FACILITY 




SERVICES, 




Respondent. 





THIS MATTER is before the undersigned administrative law judge on motion of the Respondent for an order dismissing 
the Petitioner's Petition for Contested Case Hearing pursuant to Rules 12(b)(2) &(5) of the North Carolina Rules of Civil Procedure 
and in accord with G.S. 150B-36(c) on the grounds that the Petitioner insufficiently served the Respondent and therefore, the Office 
of Administrative Hearings lacks personal jurisdiction over the Respondent. Further, the Respondent moves that the petition be 
dismissed on the grounds that the issue in this contested case, i.e., the allegation of abuse, is now moot. 

FINDINGS OF FACT 

1 . By letter dated May 5, 1997, Respondent sent a certified letter to Petitioner notifying her of the agency's intent 
to list an allegation of fraud in the Health Care Personnel Registry. The letter sent to the Petitioner clearly set out her appeal rights. 

2. The Department of Human Resources, Division of Facility Services ("DFS"), has one of the best notices in State 
government for advising potentially aggrieved parties of their appeal rights. Specifically and commendably, DFS advises the 
aggrieved party of necessary addresses and includes the name and address in bold print of the agent to be served with a copy of the 
petition. Other agencies could learn from their example. 

3. Petitioner filed her petition within the thirty day deadline and she mailed a copy of her petition to: Department 
of Human Resources, PO Box 29530, Raleigh, NC 27626. This is the address on the letterhead of the agency letter but was 
not the address given within the letter for service of process. The letter stated on page 2: 

You must serve a copy of your petition on all other parties to the petition, which includes the Department of 
Human Resources. The Department's representative for such service is Mr. R. Marcus Lodge, General Counsel. 
This person may receive service of process by mail at the following address: 

Mr. R. Marcus Lodge, General Counsel 

Department of Human Resources 

Office of Legal Affairs 

Adams Building, Room 154 

101 Blair Drive 

Raleigh, North Carolina 27603 

(emphasized in bold print in the original). 

4. Once the Office of Administrative Hearings ("OAH") received the petition, a Notice of Contested Case and 
Assignment was mailed by the Chief Hearings Clerk to: 

Dr. David Bruton, Sec. 

Department of Human Resources 

Attn: R Marcus Lodge 

101 Blair Drive 

Raleigh, NC 27603 

Respondent 



12:6 



NORTH CAROLINA REGISTER 



September 15, 1997 



501 



CONTESTED CASE DECISIONS 



5. Within ten days after a petition is filed, the Chief Hearings Clerk at the Office of Administrative Hearings 
("OAH") is required to notify the respondent state agency that a petition for a contested case hearing has been filed and accepted. 
26 NCAC 3.0103(b). Although the issuance of a civil summons which is used in district and superior courts is not procedurally 
required by OAH, the similarities between a civil summons and the Notice of Contested Case Filing and Assignment must be noted. 

A civil summons is issued in the name of the State and signed by the clerk of court. It gives the name of the case and the 
name of the county and the court where the action is commenced; it notifies the defendant in the action to appear in court within 
30 days. G.S. lA-1, Rule 4(b). The summons is served by the Sheriffs department, or by someone duly authorized to serve, and 
acopy of the complaint is served with the summons. G.S. lA-1, Rule 4(a). Proof of service is required. G.S. lA-1, Rule 4(j2). 
Service upon an agency of the State requires service upon a duly appointed process agent. G.S. 1 A-1 , Rule 4(j4). 

Like the civil summons, a Notice of Contested Case and Assignment is a document issued by the Clerk's Office at OAH 
and is signed by the clerk. It contains the caption of the case, date of filing, the assigned judge, and a request that the party send 
within 30 days a copy of the document constituting agency action. 26 NCAC 3.0103(b). Noticeable distinctions are that a copy 
of the petition is not served with the notice and proof of service is not required. The primary similarity is that both the civil 
summons and the Notice of Contested Case serve notice upon the defendant or respondent that an action has been commenced 
against it. 

6. On Jime 26, 1997, Respondent made a limited appearance before the Office of Administrative Hearings through 
counsel by filing a Motion to Dismiss for lack of personal jurisdiction and insufficiency of service of process. Petitioner responded 
to this motion on July 9, 1997. The undersigned's decision denying that motion is incorporated into this final decision. 

7. On August 1 1 , 1997, Respondent filed another motion to dismiss based upon the fact that the allegation of abuse, 
which is the subject matter of this contested case, had been substantiated. As a result of the substantiation. Respondent notified 
the Petitioner by certified mail of her appeal rights as to the substantiation. Petitioner did not appeal the substantiation of abuse 
and therefore, the substantiation is now listed on the Nurse Aide Registry and the Health Care Personnel Registry. The allegation 
of abuse is deleted from the registries and the issue of whether or not the Respondent had sufficient grounds to list the allegation 
in the Registry is now moot. Petitioner did not respond to this motion. 

Based upon the foregoing Findings of Fact, the undersigned makes the following: 

CONCLUSIONS OF LAW 

1 . In consideration of the fact that Respondent clearly instructed the Petitioner on whom to serve the petition, service 
of process would appear on its face to be insufficient. However, Petitioner did mail the petition to the proper party and at an 
address which was a legal mailing address for the party. G.S. 150B-23(a) requires a person who files a petition to serve it on the 
other party. "Service" or "serve" as defined in 26 NCAC 3.0102(a)(3) includes mailing by first class United States Postal Service 
mail addressed to the "person" to be served. "Person" as defined in G.S. 1503-2(7) includes a "body politic." Petitioner met these 
requirements. 

2. Further, the Notice of Contested Case was served by the Clerk's office at OAH to the proper process agent for 
the Respondent at the proper address. 

The purpose of service of a summons is to give notice to the party against whom the proceeding or action is 
commenced, and any notification which reasonably accomplishes that purpose answers the claims of law and 
justice. 

Fan- V. City of Rockv Mount. 10 N.C.App. 128, 177 S.E.2d 763 (1970), cert denied, 277 N.C. 725, 178S.E.2d831 (1971). 

A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; 
and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent 
person understands who is meant, it has fulfilled its purpose. 

Harris v. Maready . 64 N.C.App. 1, 306 S.E. 2d 799 (1983), rev'd on other grounds, 311 N.C. 536, 319 S.E. 2d 912 (1984). 
Therefore, service of process was sufficient for purposes of conferring personal jurisdiction over the Respondent. 



502 NORTH CAROLINA REGISTER September 15, 1997 12:6 



CONTESTED CASE DECISIONS 



) 



3. A case is "moot" when a determination is sought on a matter, which if rendered, would not have any practical 

effect on the existing controversy. Whenever during the course of the litigation, the relief sought has been granted, the case should 
bedismissed. In re Peoples. 296 NC. 109, 147, 250 S.E.2d 890, 912 (1978). Because the Department of Human Resources has 
permanently removed the allegation of fraud from the Health Care Personnel Registry and replaced it with a substantiated finding, 
which has not been contested, the relief sought by Petitioner has been granted in this case and the petition must be dismissed. 

THEREFORE, IT IS ORDERED that Respondent's Motion to Dismiss based upon a lack of personal jurisdiction be 
DENIED. The Respondent's Motion to Dismiss based upon the fact that the issue in controversy is moot is GRANTED. 



This the 27* day of August, 1997. 



Meg Scott Phipps 
Administrative Law Judge 



12:6 NORTH CAROLINA REGISTER September 15, 1997 503 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. Tlie major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other v>vo, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/IVIAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber E.xaminers 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifer) Joint Committee 


33 


20 


Treasurer 


Mortuar>' Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 


27 


NC State Bar 


Pastoral Counselors, Fee-Based Practicing 


45 






Pharmacj' 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatp,' Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Cenification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & Audiologists 


64 






Substance Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






Veterinarv Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



504 



NORTH CAROLINA REGISTER 



September 15, 1997 



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6 ^6 ^ S ^6 ^6 ^6 ^6 ^6 ^6 ^S ^S 



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BARCLAYS OFFICIAL NORTH CAROLINA ADMINISTRATIVE CODE - 1997 



DESCRIPTION 



CODE 



ANNUAL 
SUBSCRIPTION PRICE 



firie 1 - Dept. of Adminisfrotion - Complete Tlrie 201 00 001 

Division of Purchase & Contract 201 10 051 

Federal Block Grant Funds 201 10 331 

TiHe 2 - DepK of Agriculture - Complete Title 202 00 00 1 

Food & Drug Protection Division 202 15 091 

Structural Pest Control Committee 202 15 341 

Agricultural Markets 202 15 431 

Plant Industry 202 15 481 

Animal Industry 202 15 521 

ime 3 - Dept. of Storte Auditor - Complete Title 203 00 00 1 

Title 4 ■ Dept. of Commerce - Complete Title 204 00 00 1 

Alcoholic Beverage Control Commission 204 15 021 

Banking Commission 204 15 031 

Credit Union Division 204 15 061 

Savings & Loan Division 204 15 091 

Industrial Commission/Workers Compensation 204 15 101 

Savings Institutions Division 204 15 161 

Title 5 - Dept. of Corrections - Complete Title 205 00 00 1 

Division of Prisons 205 15021 

Title 6 - Council of State - Complete Title 206 00 001 

Title 7 - Dept. of Cultural Resources - Complete Title 207 00 001 

Title 8 - State Board of Elections - Complete Title 208 00 001 

Title 9 - Offices of tfie Governor & Lf. Governor ■ Complete Title 209 00 001 

Title 10 - Dept. of Human Resources - Complete Title 210 00 001 

Licensing of Health Facilities 210 20 101 

Detention Facilities 210 20 201 

Mental Health & Rehabilitation Services 210 20 301 

Social Services 210 20 401 

Children Services/Day Care 210 20 411 

Services for the Aging 210 20 421 

Services for the Blind 210 20 431 

Services for the Deaf & Hard of Hearing 210 20 441 

Employment Opportunities 210 20 451 

Title 1 1 - Dept. of Insurance - Complete Title 21 1 00 001 

Insurance 211 10 Oil 

Consumer Services 211 10 041 

Fire & Rescue Services 21110051 

Agent Services 21110 061 

Engineering & Building Codes 211 10 081 

Title 1 2 - Dept. of Justice - Complete Title 2 1 2 00 00 1 

Private Protective Services 212 10 071 

Police & Sheriff's Education & Training Standards 212 10 091 

NC Alarm Systems Licensing Board 212 10 111 

Title 1 3 - Dept. of Labor - Complete Title 2 1 3 00 001 

Mine & Quarry Safety 213 15 061 

General Safety/OSHA 213 20 001 

Wage & Hour Rules 213 15 121 

Boiler & Pressure Vessel Safety 213 15 131 

Apprenticeship & Training 213 15 141 

Elevator & Amusement Device Safety 213 15 151 

Title 1 4A - Dept. of Crime Control & Public Safety - Complete Title 2 1 4 00 00 1 

Alcohol Law Enforcement 214 00 081 

Victims Compensation Fund 214 00 111 

Title 1 5A - Dept. of Environ., Healtfi, & Nat. Resources - Complete Title 21 5 00 001 

Environmental Management 215 15 001 

AirQuahty 215 15 101 

Water Quality 215 15 201 

Land & Waste Management 215 15 301 

Solid Waste Management 215 15 311 



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Underground Storage Tanks 

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Title 1 6 - Dept. of Publk Instrudion ■ Complete Title 

Elementary & Secondary Education 

Title 1 7 - Department of Revenue - Complete Title 

Taxes on Individuals 
Taxes on Business 
Sales & Use Tax Division 
Motor Fuels Tax Division 

Title 1 8 - Secretary of State - CompleteTrtle 

Securities Division 

Title 1 9A - Dept. of Transportation - Complete Title 

Division of Highways 
Division of Motor V'ehicles 

Title 20 • Dept. of tfie Stale Treasurer - Complete Title 

Title 21 ■ Occupational Licensing Boards - Complete Title 

Title 22 • Administrative Procedures - Repealed 

Title 23 • Community Colleges - Complete Title 

Title 24 • Independent Agencies - Complete Title 

Title 25 - Office of State Personnel - CompleteTrtle 

Title 26 ■ Office of Administrative Hearings - Complete Title 

Title 27 - North Carolina State Bar - Complete Title 

North Carolina Administrative Code - Complete Code 

(Add S85.00 Shipping and Handling) 

CD-ROM North Carolina Administrative Code 

iupdated quarterly) 

CD-ROM North Carolina Administrative Code 

(When purchased with the Full Code in Print) 

Master Index 

Master Table of Contents 

Binder(s) Titled "OmdalNonh Carolina AdminislmliYe Cade" 



215 15 321 
215 15401 
215 25 001 
21525 101 
215 25 201 

215 25 301 
21525311 

21600 001 

216 10061 

21700 001 

217 15 101 
217 15 201 
217 15271 

217 15 291 

21800 001 

218 10060 

21900 001 

219 10021 

219 10031 

220 00 001 

221 00 001 
n/a 

223 00 001 

224 00 001 

225 00 001 

226 00 001 

227 00 001 
299 99 981 

266 00 001 

266 50 001 

288 50 001 
288 80 001 
299 90 000 



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